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State v. Russ

Supreme Court of Kansas

June 28, 2019

State of Kansas, Appellee,
v.
Michael F. Russ, Appellant.

         SYLLABUS

         1. The revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq., uses prior municipal ordinance convictions when calculating a person's criminal history. Under the Act, Kansas classifies a municipal ordinance conviction as a person or nonperson offense by referring to comparable misdemeanor offenses under the Kansas criminal code. If the code does not have a comparable offense, the municipal ordinance conviction is classified as a nonperson crime.

         2. Generally, an issue is moot when a judgment of the appellate court would be of no consequence.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed May 5, 2017.

          Appeal from Sedgwick District Court; Terry L. Pullman, judge.

          Kai Tate Mann, of Kansas Appellate Defender Office, was on the briefs for appellant.

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          BILES, J.

         Michael F. Russ appeals the sentencing court's classification of his prior misdemeanor convictions for violating a City of Wichita municipal ordinance as person offenses to calculate his criminal history score. He claims a Kansas Court of Appeals panel erred by (1) looking beyond the most comparable Kansas offense, i.e., domestic battery, to analyze his Wichita municipal ordinance domestic battery convictions; and (2) declining to address as moot an issue concerning his prior conviction of failure to comply with bond restrictions. See State v. Russ, No. 115, 111, 2017 WL 1821215, at *4 (Kan. App. 2017) (unpublished opinion). We affirm.

         We hold the Wichita domestic battery ordinance is narrower than the comparable state statute, so the panel did not err when it held the district court properly classified the municipal violations as person offenses. See State v. Wetrich, 307 Kan. 552, 561, 412 P.3d 984 (2018) (holding that to be "comparable" under K.S.A. 2017 Supp. 21-6811(e)(3), "the out-of-state crime cannot have broader elements than the Kansas reference offense"). As to the second error claimed, we hold the panel correctly determined the issue was moot because it could have no practical effect on the outcome. See State v. Montgomery, 295 Kan. 837, Syl. ¶ 3, 286 P.3d 866 (2012); State, ex rel., v. Bissing, 210 Kan. 389, 397, 502 P.2d 630 (1972).

         Factual and Procedural Background

         Russ pleaded guilty to attempted second-degree murder, a severity level 3 person felony, for acts committed in January 2015. A presentence investigation report recommended a B criminal history score. See K.S.A. 2016 Supp. 21-6809 (B criminal history score requires two person felonies). It reflected several prior convictions, including six Wichita municipal violations classified as person misdemeanors, five of which were eligible for conversion to a felony. See K.S.A. 2016 Supp. 21-6811(a) (providing every three prior convictions for class A and B person misdemeanors to be rated as a person felony).

         The report further recommended aggregating two 1998 domestic battery convictions and one 1998 conviction for failure to comply with bond restrictions and converting them into one person felony. It did not convert the other two eligible convictions-a 2015 domestic battery conviction and a 2015 conviction for violation of a protective order-leaving them listed as person misdemeanor offenses. Russ did not object to the criminal history score recommendation.

         The district court sentenced him to 206 months in prison, which was the mitigated presumptive sentence. See K.S.A. 2016 Supp. 21-6804(a). Russ appealed, arguing the district court erred by classifying four of his prior municipal ordinance convictions as person offenses: two 1998 domestic battery convictions, a 2015 domestic battery conviction, and his 1998 conviction for failure to comply with bond restrictions. ...


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