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.
Generally, an issue is moot when a judgment of the appellate
court would be of no consequence.
of the judgment of the Court of Appeals in an unpublished
opinion filed May 5, 2017.
from Sedgwick District Court; Terry L. Pullman, judge.
Tate Mann, of Kansas Appellate Defender Office, was on the
briefs for appellant.
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
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 App. 2017) (unpublished opinion).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.
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).
and Procedural Background
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
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.
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.