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State v. Pollman

Court of Appeals of Kansas

May 10, 2019

State of Kansas, Appellee,
v.
Robert Kenton Pollman Jr., Appellant.

         SYLLABUS BY THE COURT

         1.

         A challenge to a defendant's criminal history score may be raised for the first time on appeal under K.S.A. 22-3504 as a challenge to the legality of the sentence but not to collaterally attack a conviction.

         2.

         A defendant is permitted to plead to a nonexistent or hypothetical crime as part of a plea agreement so long as the defendant (1) was initially brought into court on a valid pleading; (2) received a beneficial plea agreement; and (3) voluntarily and knowingly entered into the plea agreement.

         3.

         If a defendant enters into a beneficial plea agreement voluntarily and intelligently, he or she forfeits the right to collaterally attack any underlying infirmity in the charge to which he or she pled.

          4.

         A judgment entered on a plea to a nonexistent crime may be based upon no objective state of facts, on a hypothetical crime, or on a hypothetical situation without objective basis.

         5.

         When the charging document alleges conduct that constitutes a crime and then the defendant voluntarily chooses to beneficially plea to a nonexistent offense, the court's jurisdiction is not lost simply because the result of the bargaining is a plea to a nonexistent offense.

         6.

         Under the circumstances of this case, defendant's conviction of a nonexistent crime is a verified conviction and is scored for criminal history purposes as an omitted, unranked, or unclassified felony.

          Appeal from Finney District Court; Michael L. Quint, judge. Opinion filed May 10, 2019.

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

          Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Powell, P.J., Atcheson and Gardner, JJ.

          GARDNER, J.

         Robert Kenton Pollman Jr. appeals the sentence imposed in 2017 for his conviction of attempted possession of methamphetamine. He claims the district court erroneously classified his 2011 conviction as a person felony in computing his criminal history. But Pollman's claim is no run-of-the-mill claim of an illegal sentence. Instead, the parties agree that the crime to which Pollman pleaded and which was later classified as a prior felony for purposes of his criminal history did not exist.

         We have repeatedly held that a defendant may plead to a nonexistent crime as part of a beneficial plea agreement so long as the defendant was initially brought into court on a valid pleading and voluntarily and knowingly entered into the plea agreement. That is what happened here. The question before us, which we have not previously determined, is how to classify a nonexistent crime for purposes of a defendant's criminal history score.

         We reject Pollman's claim that his plea of guilty to a nonexistent offense was a nullity, finding a valid distinction between an attack on a conviction based on a nonexistent offense following a jury verdict and a nullity claim raised after a plea of guilty or no contest. Even though a jury verdict would not be sustainable, a plea presents an entirely different situation. We find Pollman's 2011 verified conviction should be scored as an omitted, unranked, or unclassified felony. The parties agree on appeal that Pollman's 2011 nonexistent offense was a nonperson offense. Because the district court scored it as a person felony instead of a nonperson felony, we vacate his sentence and remand for resentencing.

         Factual and Procedural Background

         In May 27, 2011, the State charged Pollman with discharging a firearm at an occupied building or vehicle and two counts of criminal damage to property. Specifically, the complaint/information charged in Count I that on May 15, 2011, Pollman intentionally discharged a firearm at an occupied motor vehicle-a 2008 Dodge pickup, occupied by Shawnda Conner, in violation of K.S.A. 21-4219(b), a severity level 7 person felony. Count II charged Pollman with criminal damage to property of $1, 000 to less than $25, 000, a severity level 9 nonperson felony. Count III charged Pollman with criminal damage to Conner's property-shorts and/or suitcase, less than $1, 000, a class B nonperson misdemeanor.

         Pollman then entered a no-contest plea to discharge of a firearm at an unoccupied vehicle. K.S.A. 21-4219 prohibited criminal discharge of a firearm at an occupied building, at an unoccupied dwelling, or at an occupied vehicle and categorized all three as person felonies. That statute did not, however, prohibit criminal discharge of a firearm at an unoccupied vehicle. Pollman thus agreed to plead to a nonexistent offense.

         We do not mean to suggest that Pollman's acts were lawful, as clearly they were not. Pollman's admitted act of shooting a firearm at an unoccupied vehicle could constitute a number of crimes, depending on facts not shown by our limited record. See, e.g., K.S.A. 2010 Supp. 21-4217(a)(1) (prohibiting discharge of any firearm on any land of another without permission); K.S.A. 2010 Supp. 21-4217(a)(2) (prohibiting discharge of any firearm upon or from any public road or right-of-way that adjoins land of another without permission). If nothing else, it constituted criminal damage to property. K.S.A. 21-3720 (prohibiting damaging another's property without consent).

         Not surprisingly, no transcript of the 2011 plea hearing is included in the record on appeal from Pollman's 2017 conviction. As a result, we have no facts to show why the parties agreed to a plea to the amended charge of discharge of a firearm at an unoccupied vehicle. The parties could have erroneously believed that K.S.A. 21-4219 prohibited criminal discharge of a firearm at an unoccupied vehicle. That statute did, after all, prohibit criminal discharge of a firearm at an occupied building, at an unoccupied dwelling, and at an occupied vehicle. It seems more reasonable to believe that the parties made an error of law than that they intentionally agreed to fabricate a nonexistent crime out of whole cloth for Pollman's benefit. Why the parties agreed to this plea cannot now be determined. Either way, Pollman and the State agreed he would plead to a crime that did not exist.

         Pursuant to the plea, the State dismissed the two counts of criminal damage to property. The district court categorized Pollman's nonexistent offense as a severity level 8 person felony and ordered Pollman to pay restitution in the amount of $4, 278.72. The district court sentenced Pollman to 10 months in the custody of the Department of Corrections but granted him probation for 18 months for discharge of a firearm at an unoccupied vehicle. As far as we know, Pollman made no attempt to challenge his 2011 conviction until late in his current appeal arising from his 2017 sentence.

         After a traffic stop on January 29, 2017, the State charged Pollman with possession of methamphetamine and driving on a suspended license. He eventually pleaded to attempted possession of methamphetamine. At his sentencing hearing the district court classified Pollman's criminal history score as a C, without objection, based partly on the nonexistent 2011 offense which the district court scored as a person felony. The court imposed a prison sentence of 24 months with 12 months of postrelease supervision for his 2017 crime.

         Pollman appealed from his 2017 sentencing, contending that, for purposes of calculating his criminal history score in this case, the district court should have classified his nonexistent 2011 offense as a nonperson misdemeanor rather than as a person felony. His sole request was that the court vacate his sentence and remand for resentencing pursuant to the correct criminal history score of F. He argued that either by using the rule of lenity or by treating his 2011 conviction as an "unclassified crime," we should score his 2011 conviction as a nonperson misdemeanor.

         During oral arguments, this court raised an issue the parties had not raised, questioning the validity of the 2011 conviction. The court permitted the parties to address that issue in supplemental briefs and they did so. Pollman then echoed the dissent's position that because his 2011 conviction was for a noncriminal act it was invalid or void for purposes of his criminal history.

         Preservation

         Pollman concedes that he did not raise any issue regarding his sentence in the district court, but he contends that it is properly considered by this court as an illegal sentence under K.S.A. 22-3504. An illegal sentence may be corrected at any time, even for the first time on appeal. State v. McLinn, 307 Kan. 307, 349, 409 P.3d 1 (2018). Kansas appellate courts have previously considered legal challenges to criminal history scores, like Pollman's, for the first time on appeal as challenges to the legality of the sentences. See State v. Sturgis, 307 Kan. 565, 572, 412 P.3d 997 (2018); State v. Campbell, 307 Kan. 130, 133, 407 P.3d 240 (2017). We do the same.

         Should Pollman's 2011 Conviction for a Nonexistent Offense Be Used in His Criminal History Score?

         We first examine whether Pollman's 2011 conviction for the nonexistent offense of discharging a firearm at an unoccupied vehicle should be used in his criminal history score. This requires us to examine Pollman's argument that his conviction is invalid because it was based on a nonexistent or hypothetical crime.

         A. Pollman's 2011 conviction for a nonexistent offense was a conviction.

         Pollman initially stated that he was not challenging his underlying 2011 conviction. Instead, his brief recognized that his 2011 conviction was likely valid even though K.S.A. 21-4219 did not prohibit discharging a firearm at an unoccupied vehicle:

"Nonetheless, the conviction is likely valid, and certainly not challenged here. Indeed, a defendant is permitted to plead to a nonexistent crime or hypothetical crime as part of a plea agreement, so long as the defendant [meets the three conditions stated in] McPherson v. State, 38 Kan.App.2d 276, 285, 163 P.3d 1257 (2007)."

         Pollman changed his position in his supplemental brief, contending that his 2011 conviction was invalid because it was based on a nonexistent or hypothetical crime so it could not be counted in his criminal history. But Pollman cannot use this appeal which solely challenges his 2017 sentencing to attack his 2011 conviction, as Pollman now invites us to do. "K.S.A. 22-3504 is not a vehicle for a collateral attack on a conviction." State v. Williams, 283 Kan. 492, 495-96, 153 P.3d 520 (2007) (citing State v. Nash, 281 Kan. 600, Syl. ¶ 2, 133 P.3d 836');">133 P.3d 836 [2006]). Our Supreme Court "has repeatedly stated that the relief available under K.S.A. 22-3504 is correction of a sentence, not reversal of a conviction." State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). The same is true here.

         B. Pollman forfeited his right to attack the underlying infirmity in the charge to which he pleaded no contest.

         But even if Pollman's challenge here were distinctively different than the typical K.S.A. 22-3504 motion, Pollman has forfeited his right to attack the underlying infirmity in the charge to which he pleaded no contest. Pollman cannot consider his 2011 conviction to be valid for all purposes but his criminal history. The fact of his 2011 conviction has been established and cannot be collaterally attacked now, as the following cases establish.

         Kansas cases

         This issue has been addressed in a related context several times. The procedural posture of these cases differs from Pollman's but not significantly so. In Spencer v. State, 24 Kan.App.2d 125, 126, 942 P.2d 646 (1997), aff'd on other grounds 264 Kan. 4, 954 P.2d 1088 (1998), we found, when reviewing the dismissal of a K.S.A. 60-1507 motion, that attempted aggravated assault was not a crime. Then, as now, our statutes provided that a crime was an act or omission defined by law and that no conduct constitutes a crime in Kansas unless it is made criminal by statute. K.S.A. 21-3102; K.S.A. 21-3105. Yet we held that a defendant may plead to a nonexistent crime as part of a plea agreement so long as the defendant (1) was initially brought into court on a valid pleading; (2) received a beneficial plea agreement; and (3) voluntarily and knowingly entered into the plea agreement. Spencer, 24 Kan.App.2d at 129. We reached the conclusion that one could validly plead to a crime that "may not be logically or technically consistent" but which could be upheld, "because the defendant received the benefit of a bargain into which he freely entered." 24 Kan.App.2d at 128-29. We further held that "if a defendant enters into a plea agreement voluntarily and intelligently, he or she forfeits the right to attack the underlying infirmity in the charge to which he or she pled." 24 Kan.App.2d at 129. Our Supreme Court, on review, held that attempted aggravated assault was, in fact, a crime, so Spencer had not pleaded to a nonexistent crime. 264 Kan. at 5-6, 8. It thus did not reach the Court of Appeals' analysis.

         In Easterwood v. State, 273 Kan. 361, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002), the movant filed a K.S.A. 60-1507 motion arguing that his conviction should be overturned due to a then recent change in the felony-murder rule. But our Supreme Court held that Easterwood had knowingly waived his right to challenge his conviction at trial or through a direct appeal and pled guilty to obtain a favorable plea agreement, so he could not collaterally attack his conviction. 273 Kan. 361-62. Our Supreme Court acknowledged the Court of Appeals' holding in Spencer that a defendant could plead guilty to a nonexistent crime, yet it did not reject or disapprove of that analysis. 273 Kan. at 382. Instead, the Easterwood court focused on the effect of a plea. It affirmed Easterwood's convictions and refused to allow him to challenge a voluntary and knowing plea based on a later favorable ruling, concluding that Easterwood had invited the error to receive a favorable plea bargain. 273 Kan. at 383.

         The Kansas Supreme Court then denied review on two other Kansas Court of Appeals cases that cited Spencer favorably for the proposition that a defendant may plead to a nonexistent crime. State v. Luthi, No. 91, 409, 2004 WL 2927742, at *6 (Kan. App. 2004) (unpublished opinion) (motion to withdraw a plea), rev. denied 279 Kan. 1009 (2005); Mills v. State, No. 89, 012, 2003 WL 22387749, at *1 (Kan. App. 2003) (unpublished opinion) (K.S.A. 60-1507 motion), rev. denied 277 Kan. 924 (2004). Luthi also relied on Spencer's holding that the defendant "'forfeits the right to attack the underlying infirmity in the charge to which he or she pled.'" 2004 WL 2927742, at *6.

         Then came McPherson v. State, 38 Kan.App.2d 276, 163 P.3d 1257 (2007). McPherson had entered a plea bargain and pleaded no contest to one count of attempted second-degree unintentional murder-a crime that did not exist. McPherson filed a K.S.A. 60-1507 motion seeking to reverse his convictions arguing that his due process rights were violated by his conviction and sentence for a nonexistent crime. The district court denied McPherson's motion, holding that because McPherson was originally charged with a valid crime and benefitted from a favorable plea agreement, his plea was acceptable. The district court also concluded that McPherson forfeited any challenges to the infirmity of the crime by entering a knowing and voluntary plea.

         On appeal, we reaffirmed Spencer, 24 Kan.App.2d at 129, holding:

"A defendant is permitted to plead to a nonexistent or hypothetical crime as part of a plea agreement so long as the defendant (1) was initially brought into court on a valid pleading; (2) received a beneficial plea agreement; and (3) voluntarily and knowingly entered into the plea agreement." McPherson, 38 Kan.App.2d 276, Syl. ¶ 2.

         We found those three conditions to be met and concluded: "[I]f a defendant enters into a beneficial plea agreement voluntarily and intelligently, he or she forfeits the right to attack any underlying infirmity in the charge to which he or she pled." 38 Kan.App.2d at 284-85. The Kansas Supreme Court did not review McPherson.

         We find McPherson to be well-reasoned and persuasive:

"Although the practice of permitting plea agreements such as this one to stand may seem illogical at first glance, such agreements serve a legitimate purpose. Compromises have long been permitted by our courts. Criminal cases are resolved by plea bargains virtually every day. As long as due process requirements are met and the bargain is beneficial to the defendant that defendant cannot later validly collaterally attack either the plea or bargained-for sentence. To paraphrase the Spencer court, if a defendant enters into a beneficial plea agreement voluntarily and intelligently, he or she forfeits the right to attack the underlying infirmity in the charge to which he or she pled. 24 Kan.App.2d at 129." 38 Kan.App.2d at 285.

         Similarly, in State v. Flores, 292 Kan. 257, 258-60, 252 P.3d 570 (2011), our Supreme Court upheld the denial of a motion to withdraw a plea where Flores conceded he received a "'beneficial plea agreement'" but nevertheless contended he pled to a nonexistent crime because the statutes did not include attempted voluntary manslaughter as an inherently dangerous felony. The State relied on Spencer, Easterwood, and McPherson. But once again, our Supreme Court found that the charge to which Flores ultimately pled-felony murder with an underlying felony of attempted voluntary manslaughter-was a crime. It did not reach our court's Spencer analysis. Flores, 292 Kan. at 260-61.

         We recently applied McPherson in State v. Moral, No. 111, 426, 2016 WL 463399, at *6 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1327 (2017). There, we found the district court properly accepted a factual basis for Moral's misdemeanor plea, even though it was inconsistent with the crime charged. "Because Moral accepted the benefit of his plea agreement knowingly and voluntarily, he cannot attack the factual basis for his conviction and sentence on appeal." 2016 WL 463399, at *7.

         The above cases illustrate that we have repeatedly applied our court's Spencer analysis and that our Supreme Court has had several opportunities to disapprove Spencer's analysis, yet it has never done so. We believe Spencer's analysis is sound. The rationale in these cases may be based partly on an unspoken application of a species of judicial estoppel where a litigant cannot induce the court to take a position at one stage of the litigation when that position is beneficial to the litigant and then later invite the court to take an opposite position to obtain a different benefit or avoid a detriment. Or the cases may be based on a contractual benefit-of-the-bargain rationale which binds a defendant not only to the benefits of his or her plea bargain but also to its ensuing detriments. Whatever the rationale, our cases teach that Pollman could plead to a nonexistent crime as part of a plea agreement as long as he was initially brought into ...


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