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State v. Smith

Supreme Court of Kansas

May 17, 2019

State of Kansas, Appellee,
Robin Smith, Appellant.


         1. Statutory interpretation presents a question of law over which an appellate court has unlimited review.

         2. When interpreting statutes, an appellate court begins with the fundamental rule that courts give effect to the legislative intent as it is expressed in the statute. The court must apply a statute's plain language when it is clear and unambiguous, rather than determining what the law should be, speculating about the legislative intent, or consulting the legislative history.

         3. When the legislative intention is clear and unmistakable, an appellate court must disregard or correct errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiencies. But the court cannot delete vital portions from a statute or supply vital omissions. No matter what the Legislature may have intended to do, if it did not in fact do so under any reasonable interpretation of the language used, the defect is one the Legislature alone can correct.

         4. K.S.A. 2015 Supp. 21-6811(e)(2)'s plain language precludes a sentencing court from scoring a municipal ordinance violation when the convicting jurisdiction's municipal code fails to designate that violation as either a felony or misdemeanor while it uses those designations for other violations.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed October 13, 2017.

          Appeal from Johnson District Court; Timothy P. McCarthy, judge.

          Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause, and Patrick H. Dunn, of the same office, was on the briefs for appellant.

          Shawn E. Minihan, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.


          Biles, J.

         Robin Smith appeals her sentence after pleading guilty to trafficking contraband in a jail. She argues the district court should not have included a Missouri municipal ordinance violation for endangering the welfare of a child as a person misdemeanor when calculating her criminal history score. The Court of Appeals agreed, vacated her sentence, and remanded with directions to exclude the Missouri ordinance violation at resentencing. State v. Smith, No. 116, 586, 2017 WL 4558253 (Kan. App. 2017) (unpublished opinion). The State seeks review of that decision. We affirm, although our reasoning differs from the panel.

         Under the Revised Kansas Sentencing Guidelines Act, K.S.A. 2015 Supp. 21-6801 et seq., an out-of-state crime is classified as either a felony or a misdemeanor according to the convicting jurisdiction when calculating an offender's criminal history score. K.S.A. 2015 Supp. 21-6811(e)(2). But Missouri does not consider municipal ordinance violations to be crimes, and the relevant municipal code designates some violations as misdemeanors, but not Smith's. This case is remanded for resentencing with directions to exclude the Missouri ordinance violation.

         Factual and Procedural Background

         Smith pleaded guilty to trafficking contraband in a jail, a crime the State alleged occurred on January 21, 2016. The district court accepted the plea, pronounced her guilty, and ordered a presentence investigation. Her criminal history worksheet assigned her a score of "D." It reflected nine prior misdemeanor offenses, but only five were scored. Among those scored as an "Adult Misdemeanor Conversion" was a 2005 municipal ordinance violation from Lake Lotawana, Missouri, for endangering the welfare of a child.

         It is undisputed this ordinance violation is not a crime under Missouri state law. Similarly, Lake Lotawana Municipal Code does not consider Smith's ordinance violation to be a felony or misdemeanor. Lake Lotawana Mun. Code § 210.050 (2010). In fact, the city's municipal code designates some offenses as misdemeanors, but not that one. Compare Lake Lotawana Mun. Code § 110.140 (2010) (providing city treasurer guilty of misdemeanor upon disbursing city funds on warrant or order of board of aldermen before requisite financial statement published); § 205.130.B. (declaring animal neglect a misdemeanor); § 210.190 (declaring corrupting or diverting water supply a misdemeanor); § 210.250 (declaring discharging an air gun or similar devices a misdemeanor); § 125.150 ("Any person charged with a violation of a municipal ordinance of this City shall be entitled to a trial by jury, as in prosecutions for misdemeanors . . . ." [Emphasis added.]), with Lake Lotawana Mun. Code § 210.050 (silent on designation of misdemeanor for conviction of endangering the welfare of a child).

         In Kansas, a criminal history score of "D" applies when "[t]he offender's criminal history includes one adult conviction or juvenile adjudication for a person felony, but no adult conviction or juvenile adjudications for a nonperson felony." K.S.A. 2015 Supp. 21-6809. And because Smith did not have any prior felony convictions, her "D" score must have been based on K.S.A. 2015 Supp. 21-6811(a), which provides:

"Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender's criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes."

         Smith did not object to her criminal history score at the time. Instead, she requested a downward dispositional departure, which the district court denied before sentencing her according to the plea agreement. It imposed the low grid box, 50-month prison sentence and ordered the sentence to run concurrently with a sentence in a different case for which she was on probation. Smith timely appealed. The only issue raised is whether the sentencing court properly classified her ordinance violation as a misdemeanor.

         Smith argued a crime's classification depends on how the convicting jurisdiction classifies it, and city ordinance violations are not crimes under Missouri law. The State countered that the violation was properly scored. It argued the Legislature intended municipal ordinances to be scored, and that Smith's violation was comparable to the Kansas endangering a child misdemeanor. See K.S.A. 2018 Supp. 21-5601(a), (c)(1). Alternatively, it insisted any error classifying the Lake Lotawana child endangerment violation as a misdemeanor was harmless because she had another ordinance violation that could be scored as a misdemeanor, i.e., a Lake Lotawana assault.

         The Court of Appeals vacated Smith's sentence and remanded her case to the district court for resentencing. It held the rule of lenity applied because the sentencing guidelines were silent about how to classify an out-of-state ordinance violation when the convicting jurisdiction does not consider an ordinance violation to be a crime. Smith, 2017 WL 4558253, at *4-5 (citing State v. Horselooking, 54 Kan.App.2d 343, 400 P.3d 189');">400 P.3d 189 [2017]). It rejected the State's harmless error argument because the ordinance violation for assault suffers from the same problem, i.e., Missouri does not classify municipal ordinance violations for assault as misdemeanors or felonies, or even crimes. 2017 WL 4558253, at *5.

         We granted the State's timely petition for review. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has ...

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