BY THE COURT
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 an offender's
criminal history score. Under the Act, the State classifies
an out-of-state conviction as a person or nonperson offense
by referring to comparable offenses under the Kansas criminal
code. If the code does not have a comparable offense, the
out-of-state conviction is classified as a nonperson crime.
prior out-of-state conviction must have elements identical to
or narrower than a Kansas person crime to be scored as a
State bears the burden 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.
of the judgment of the Court of Appeals in an unpublished
opinion filed December 20, 2017.
from Sedgwick District Court; Terry L. Pullman, judge.
Schirer, of Kansas Appellate Defender Office, and Kimberly
Streit Vogelsberg, of the same office, were on the briefs for
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the briefs for appellee.
Ewing appeals his sentencing court's classification of
two Arkansas misdemeanors as person offenses when determining
his criminal history score after he pleaded guilty to three
counts of felony theft and one count of attempted aggravated
burglary. He questions: (1) whether his Arkansas misdemeanor
conviction for second-degree false imprisonment has a
comparable Kansas person crime; (2) whether he can challenge
for the first time on appeal the classification of his
Arkansas misdemeanor conviction for third-degree domestic
battery when it is not clear which provision he was convicted
under; and (3) if that second claim can be raised, whether
the Arkansas third-degree domestic battery has a comparable
Kansas person crime. We vacate Ewing's sentences in each
of the three docketed cases in this appeal and remand each
for resentencing with directions to score the second-degree
false imprisonment conviction as a nonperson offense and to
further consider the Arkansas battery.
hold there is no comparable Kansas person crime to the
Arkansas false imprisonment conviction. We further conclude
insufficient evidence supports the person-crime
classification for the Arkansas battery conviction because
the record does not reflect which statutory provision Ewing
was convicted under. The district court must conduct further
proceedings before classifying that conviction.
and Procedural Background
State charged Ewing in three cases with felony theft, with an
additional aggravated burglary count charged in one of those
cases. The State alleged the crimes occurred in 2015 and
2016. Ewing pleaded guilty in all three cases, which resulted
in three felony theft convictions and a conviction on a
reduced charge of attempted aggravated burglary. The charges
in our Docket No. 116,642 stem from acts allegedly occurring
after the guilty plea in Docket No. 116,641, but before
sentencing. Likewise, the charge in No. 116,643 stems from an
act occurring after the guilty pleas in Nos. 116,641 and
116,642, but before sentencing. To resolve all three cases
the parties jointly recommended Ewing receive a total
36-month prison sentence.
presentence investigation report included two Arkansas
misdemeanors that combined with a Kansas misdemeanor for
conversion to a person felony. See K.S.A. 2018 Supp.
21-6811(a) (providing every three prior class A and B person
misdemeanors are rated as a single person felony for criminal
history purposes). These Arkansas offenses were
"Battery-3rd Degree-Domestic" under Ark. Code Ann.
§ 5-13-203 and "False Imprisonment-2nd Degree"
under Ark. Code Ann. § 5-11-104. Ewing's counsel did
not object to this.
district court followed the plea agreement. In No. 116,641,
it sentenced Ewing to 15 months' imprisonment for theft.
In No. 116,642, it sentenced him to a combined 36 months'
imprisonment for attempted aggravated burglary and theft, to
run concurrent with the sentence in No. 116,641. And in No.
116,643 it sentenced him to 15 months' imprisonment for
theft, also to run concurrent with the sentence in No.
timely appealed, arguing the district court erred by
classifying his Arkansas convictions as person offenses. He
asserted these classifications required judicial fact-finding
that violated his Sixth and Fourteenth Amendment rights under
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), and Descamps v. United
States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438
of Appeals panel held the Arkansas false imprisonment
conviction was properly scored as a person crime. It
concluded the Arkansas offense was narrower than the
comparable Kansas criminal restraint statute, so there was no
error regardless of whether the required comparison was
governed by this court's decision in State v.
Vandervort, 276 Kan. 164, 72 P.3d 925 (2003), or the
identical-or-narrower test Ewing advocated based on
Descamps. State v. Ewing, No. 116,641, 2017
WL 6506574, at *4. (Kan. App. 2017) (unpublished opinion).
panel vacated the sentences in each case and remanded for
resentencing because the record was unclear what statute or
subsection the Arkansas battery offense arose under. The
panel concluded there might not be a comparable Kansas person
crime depending on what version of the Arkansas offense Ewing
committed. It directed the district court to "examine
appropriate documents related to the conviction to determine
which of the statute's alternative elements formed the
basis of Ewing's prior conviction." 2017 WL 6506574,
panel rejected the State's procedural argument that it
should just presume the crimes were properly classified
because, in its view, Ewing did not lodge an objection and
failed to designate a record sufficient to identify the
Arkansas offense in question. The panel reasoned that Kansas
caselaw "has made it clear that criminal history
challenges can be raised for the first time on appeal even
without an objection by the defendant at sentencing."
2017 WL 6506574, at *7 (citing State v. Dickey, 301
Kan. 1018, 1034, 350 P.3d 1054');">350 P.3d 1054 ).
sides timely sought 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 jurisdiction to review Court of Appeals decisions upon
petition for review).
False Imprisonment Is Not a Person Crime
contends the Arkansas false imprisonment conviction should
not be scored as a person crime. The classification of prior
offenses for criminal history purposes involves
interpretation of the revised Kansas Sentencing Guidelines
Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq. Statutory
interpretation is a question of law subject to unlimited
review. State v. Wetrich, 307 Kan. 552, 555, 412
P.3d 984 (2018).
the revised KSGA,
"(1) Out-of-state convictions and juvenile adjudications
shall be used in classifying the offender's ...