BY THE COURT
Statutory interpretation presents a question of law over
which an appellate court has unlimited review.
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
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.
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
of the judgment of the Court of Appeals in an unpublished
opinion filed October 13, 2017.
from Johnson District Court; Timothy P. McCarthy, judge.
D. Schirer, of Kansas Appellate Defender Office, argued the
cause, and Patrick H. Dunn, of the same office, was on the
briefs for appellant.
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.
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 App. 2017) (unpublished opinion).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.
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.
and Procedural Background
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.
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
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
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.
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
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 ). 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.
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 ...