BY THE COURT
Interpretation of a statute is a question of law over which
appellate courts have unlimited review.
plain language of K.S.A. 2018 Supp. 21-6810(d)(10) excludes
from criminal history calculations prior convictions that
enhance the severity level of the present crime of
conviction, elevate the classification of the present crime
of conviction from a misdemeanor to a felony, or are elements
of the present crime of conviction.
from Shawnee District Court; Nancy E. Parrish, judge.
A. Kaul, of Kansas Appellate Defender Office, for appellant.
Litfin, assistant solicitor general, and Derek Schmidt,
attorney general, for appellee.
Malone, P.J., Standridge and Warner, JJ.
Michael Wilmore appeals his sentence for his convictions of
two counts of indecent liberties with a child. Wilmore claims
the district court imposed an illegal sentence when it
calculated his criminal history score in violation of K.S.A.
2018 Supp. 21-6810(d)(10). More specifically, he argues that
because two of his prior domestic battery convictions were
used in an earlier case to elevate the classification of a
third domestic battery conviction from a misdemeanor to a
felony, the same two domestic battery convictions cannot be
used in calculating his criminal history score in this case.
Our court has consistently rejected the argument Wilmore is
making here in previous unpublished decisions, and we reject
it again for the reasons stated in this opinion.
December 8, 2017, pursuant to a plea agreement, Wilmore pled
no contest to and the district court convicted him of two
counts of indecent liberties with a child, a severity level 5
person felony. According to the presentence investigation
(PSI) report, Wilmore's criminal history included a
person felony conviction of aggravated assault in 2015; a
person felony conviction of domestic battery in 2016; and
three person misdemeanor convictions-including a first
conviction of domestic battery in August 2013, a second
conviction of domestic battery in November 2013, and a
conviction of violating a protective order in 2011. The PSI
report calculated Wilmore's criminal history score as A,
based on his two prior person felony convictions and the
aggregation of his three person misdemeanor convictions into
a third person felony.
January 26, 2018 sentencing hearing, Wilmore did not object
to his criminal history score. With a criminal history score
of A, the sentencing range for a severity level 5 felony,
such as indecent liberties with a child, was 122-130-136
months' imprisonment. The district court sentenced
Wilmore to a controlling term of 122 months' imprisonment
with lifetime postrelease supervision. Wilmore timely
appealed his sentence.
appeal, Wilmore claims the district court "erred in
calculating [his] criminal history score by double-counting
his misdemeanor domestic battery convictions." More
specifically, Wilmore argues that the district court imposed
an illegal sentence when it calculated his criminal history