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State v. Saucedo

Supreme Court of Kansas

August 2, 2019

State of Kansas, Appellee,
v.
Gerardo G. Saucedo, Appellant.

         SYLLABUS BY THE COURT

         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, 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.

         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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed February 9, 2018.

          Appeal from Reno District Court; Timothy J. Chambers, judge.

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

          Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

          BILES, J.

         Gerardo G. Saucedo seeks review of a Court of Appeals decision affirming the district court's classification of his prior Washington state residential burglary conviction as a person felony. State v. Saucedo, No. 117, 299, 2018 WL 793333 (Kan. App. 2018) (unpublished opinion). He argues the Washington offense's intent element was broader than that required to commit a Kansas person crime. We agree.

         Under State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), and State v. Moore, 307 Kan. 599, 412 P.3d 965 (2018), Saucedo's Washington conviction was not comparable to any offense under the Kansas criminal code within the meaning of the revised Kansas Sentencing Guidelines Act. The Washington crime's mental state element is not identical to, or narrower than, that of the Kansas crime. See Moore, 307 Kan. at 603 (comparing the intent element for the Oregon burglary conviction to the Kansas offense of burglary of a dwelling). Saucedo's sentence must be vacated and the case remanded to the district court to resentence him with a criminal history score characterizing the Washington conviction as a nonperson felony.

          Factual and Procedural Background

         Saucedo pleaded guilty to two drug-related felony convictions for conduct that occurred in April 2014: possession of marijuana with intent to sell and possession of drug paraphernalia. The district court held a sentencing hearing in February 2016.

         The court calculated a criminal history score of B, based in part on classifying as person felonies a 2001 Washington conviction for "attempting to elude a police vehicle" and a 2003 Washington conviction for "residential burglary." Saucedo's presumptive sentence range increased under K.S.A. 2018 Supp. 21-6805 due to his criminal history score. The court granted a durational departure for a controlling ...


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