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State v. Obregon

Supreme Court of Kansas

June 28, 2019

State of Kansas, Appellee,
v.
Christopher Obregon, Appellant.

         SYLLABUS

         1. The classification of prior offenses for criminal history purposes involves interpretation of the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq. Statutory interpretation is a question of law subject to unlimited review.

         2. The revised Kansas Sentencing Guidelines Act uses prior out-of-state convictions when calculating a person's criminal history. Under the Act, Kansas classifies an out-of-state conviction as a person or nonperson offense by referring to comparable offenses under the Kansas criminal code. If the Kansas criminal code does not have a comparable offense, the out-of-state conviction is classified as a nonperson crime.

         3. A prior out-of-state conviction must have elements identical to or narrower than a Kansas person crime to be scored as a person crime.

         4. The State has the burden at sentencing to prove an offender's criminal history by a preponderance of the evidence. The district court's finding that the State met that burden must be supported by substantial competent evidence.

         5. Under K.S.A. 2018 Supp. 21-6805(g)(1), if the trier of fact makes a finding that an offender possessed a firearm in furtherance of a drug felony, that offender must be sentenced to an additional six months' imprisonment.

         6. As a general rule, special questions may not be submitted to a jury for answer in a criminal prosecution.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed February 16, 2018.

          Appeal from Geary District Court; Ryan W. Rosauer, judge.

          Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Jason B. Oxford, assistant county attorney, argued the cause, and Krista Blaisdell, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          OPINION

          BILES, J.

         Christopher Obregon appeals his sentence after pleading no contest to drug offenses. He challenges whether a prior Florida battery conviction should be classified as a person felony. Obregon also disagrees with the Court of Appeals decision to remand his case for a jury trial on whether a firearm sentence enhancement is appropriate. We affirm in part, reverse in part, vacate sentences, and remand to the district court with directions.

         We vacate Obregon's sentence and order the district court to reconsider the Florida conviction's person-crime classification. This is necessary because there were two alternative means of committing the Florida offense, and it is unclear which provided the basis for conviction. This may be significant because one version of the Florida offense lacks a comparable Kansas person offense, so it would not support the person-crime classification the district court gave it. See State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018). We also order that Obregon's resentencing proceed without the firearm enhancement. The panel's remand for a jury finding is contrary to our state's general rule against special verdicts in criminal cases.

         Factual and Procedural Background

         Obregon pleaded no contest to one count each of marijuana possession with intent to distribute and cocaine possession with intent to distribute. These offenses occurred in May 2016. In exchange, the State dismissed 18 other drug charges.

         Under K.S.A. 2018 Supp. 21-6805(g)(1), "if the trier of fact makes a finding that an offender . . . in the furtherance of a drug felony, possessed a firearm, . . . the offender shall be sentenced to: (A) . . . an additional 6 months' imprisonment." In its complaint, the State alleged both counts Obregon pleaded to carry the statutory enhancement. The plea agreement provided for the enhancement. The district court accepted Obregon's no contest pleas, found him guilty of both offenses, and applied the enhancement.

         Obregon's presentence investigation report recommended a B criminal history score. It listed four prior convictions, including a 2012 Florida battery conviction, which the PSI report recommended be scored as a person felony. Obregon would have had a criminal history score of C if the Florida battery was scored as a nonperson felony. See K.S.A. 2018 Supp. 21-6809 (criminal history categories in scale).

         Florida's battery statute contains two ways to commit the offense. One is identical to a Kansas battery, but the other is broader. See Fla. Stat. § 784.03(1)(a) (2009). The PSI report did not show which version in the Florida statute Obregon was ...


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