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
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
prior out-of-state conviction must have elements identical to
or narrower than a Kansas person crime to be scored as a
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.
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.
of the judgment of the Court of Appeals in an unpublished
opinion filed February 16, 2018.
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.
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.
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
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.
and Procedural Background
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.
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.
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).
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