State v. Murdock

Citation323 P.3d 846,299 Kan. 312
Decision Date02 May 2014
Docket NumberNo. 104,533.,104,533.
PartiesSTATE of Kansas, Appellee, v. Jimmy MURDOCK, Appellant.
CourtUnited States State Supreme Court of Kansas
OPINION TEXT STARTS HERE
Syllabus by the Court

1. K.S.A. 21–4711(e) governs the classification of out-of-state crimes/convictions as person or nonperson offenses. It provides in part that if the state of Kansas does not have a comparable offense, the out-of-state conviction must be classified as a nonperson offense.

2. A fundamental rule for sentencing is that the person convicted of a crime is sentenced in accordance with the sentencing provisions in effect at the time the crime was committed.

3. The appellate rule that the penalty parameters for an offense are fixed as of the date of the commission of the offense is fair, logical, and easy to apply.

4. Kansas did not begin classifying crimes as person or nonperson offenses until 1993 when the Kansas Sentencing Guidelines Act, K.S.A. 21–4701 et seq., was enacted.

5. When calculating a defendant's criminal history that includes out-of-state convictions committed prior to enactment of the Kansas Sentencing Guidelines Act, K.S.A. 21–4701 et seq., the out-of-state convictions must be classified as nonperson offenses. Prior caselaw contrary to this holding is overruled.Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger, of the same office, was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by BILES, J.:

Jimmy Murdock argues the district court erroneously calculated his criminal history score during a sentencing proceeding by treating two prior out-of-state convictions from 1984 and 1990 as person crimes instead of nonperson crimes. The issue is rare because these prior out-of-state offenses were committed before enactment of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq., and the KSGA does not expressly provide how such offenses should be classified. We conclude these convictions should be treated as nonperson offenses. Accordingly, we reverse the Court of Appeals and the district court and remand for resentencing with directions to classify the two prior out-of-state convictions as nonperson offenses.

Factual and Procedural Background

Murdock pleaded guilty to two counts of aggravated robbery and one count of robbery for crimes occurring in December 2008. To calculate his sentence, the district court found Murdock had two Illinois robbery convictions from 1984 and 1990 and a 1996 Kansas robbery conviction. It classified all three prior convictions as person offenses, which gave Murdock three or more adult convictions for person felonies. This treatment placed him in criminal history category A under K.S.A. 21–4709. Murdock was sentenced to 233 months' imprisonment for the first aggravated robbery conviction and concurrent 36–month sentences for the remaining two convictions. He would have fallen within criminal history category C if the two out-of-state convictions had been designated as nonperson offenses, resulting in a lesser sentence. See K.S.A. 21–4709; K.S.A. 21–4704.

Murdock timely appealed his sentences to the Court of Appeals, arguing the two out-of-state convictions were wrongly classified as person offenses. The Court of Appeals affirmed the district court in State v. Murdock, No. 104,533, 2011 WL 4031550, at *3 (Kan.App.2011) (unpublished opinion). Murdock petitioned for this court's review, which was granted under K.S.A. 20–3018(b), with this court obtaining jurisdiction under K.S.A. 60–2101(b).

Analysis

The issue is whether the district court improperly scored Murdock's criminal history because it classified his two Illinois robbery convictions as person offenses. Murdock argues both crimes should have been scored as nonperson offenses under K.S.A. 21–4710(d)(8). In the alternative, he contends this court should determine the legislature intended to designate pre–1993 convictions as nonperson offenses.

Standard of Review

This case turns on the interpretation of several sentencing statutes. Statutory interpretation is a question of law subject to unlimited appellate review. State v. Guder, 293 Kan. 763, 765, 267 P.3d 751 (2012). If a statute is plain and unambiguous, appellate courts do not speculate about legislative intent or resort to canons of construction or legislative history. State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012).

Classifying pre-KSGA convictions

In scoring criminal history under the KSGA, distinctions are made between person and nonperson crimes. Compare K.S.A. 21–3427 (aggravated robbery is a person offense) with K.S.A. 21–3701 (theft is a nonperson offense). Generally speaking, person crimes are weighted more heavily than nonperson crimes. See K.S.A. 21–4709.

K.S.A. 21–4711(e) governs the classification of out-of-state crimes/convictions. It states in pertinent part:

“The state of Kansas shall classify the [prior out-of-state] crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” K.S.A. 21–4711(e).

The KSGA does not define comparable offense, but this court has previously held a comparable offense is determined by comparing the elements of the crimes, stating that “the offenses need only be comparable, not identical.” State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003).

Murdock does not dispute that his out-of-state robbery convictions are comparable to the Kansas crime of robbery, and a review of the elements of those crimes supports this admission. Compare Ill. Com. Stat. ch. 270 5/18–1(a) (2003) with K.S.A. 21–3426. But one must also identify the correct version of our Kansas statute to make this comparison, which is where Murdock's dispute draws its focus.

Kansas did not begin categorizing crimes as person or nonperson offenses until 1993 when the KSGA was adopted. See L.1992, ch. 239, sec. 1 (KSGA effective July 1, 1993). When Murdock was convicted of the Illinois robberies (which were felony offenses) in 1984 and 1990, Kansas simply defined robbery as a “class C felony.” K.S.A. 21–3426 (Ensley 1981). The record does not disclose the dates when the out-of-state offenses were committed, but K.S.A. 21–3426 (Ensley 1981) was not amended from the prior enactment in 1969 until 1992. See K.S.A. 21–3426 (historical notes). Therefore, it is obvious the same penalty provision was in effect at the time Murdock committed his out-of-state offenses. In December 2008, when Murdock committed the current crimes of conviction, Kansas defined robbery as a “severity level 5, person felony.” K.S.A. 21–3426.

Murdock argues the comparable offense to his Illinois robbery convictions is K.S.A. 21–3426 (Ensley 1981)—the statute in effect when the Illinois crimes were committed. He notes K.S.A. 21–4710(d)(8), which pertains to scoring unclassified crimes, states: “Unless otherwise provided by law, unclassified felonies and misdemeanors, shall be considered and scored as nonperson crimes for the purpose of determining criminal history.” This statute, he reasons, requires his Illinois convictions to be treated as nonperson offenses based on this court's holding in State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), that the comparable Kansas offenses must be determined as of the date the defendant committed the out-of-state crimes.

In the Williams case, Williams had pleaded guilty to two counts of identity theft for crimes occurring in 2005 and 2006. Her criminal history was scored based on five State of Washington convictions for identity theft that she had committed between December 2001 and September 2002. At the time Williams committed those out-of-state crimes, Kansas classified identity theft—the comparable offense—as a person offense, but it had reclassified that crime as a nonperson offense by the time Williams committed and was sentenced for her Kansas crimes. The parties disputed whether the comparable offense should be determined as of the date of her Kansas sentencing, when she committed the Kansas offenses, or when Williams committed the prior Washington offenses.

The Williams court held that in the absence of a statutory directive a comparable offense should be determined as of the date the prior crime was committed. This outcome, the court reasoned, was “consistent with our fundamental rule of sentencing for a current in-state crime: sentencing in accordance with the penalty provisions in effect at the time the crime was committed.” 291 Kan. at 560, 244 P.3d 667. The court further held that fixing the penalty parameters for an offense ‘as of the date of the commission of the offense is fair, logical and easy to apply.’ 291 Kan. at 560, 244 P.3d 667 (quoting Vandervort, 276 Kan. at 180, 72 P.3d 925).

Since then, the Court of Appeals has followed Williams when the prior out-of-state offense was committed after the sentencing guidelines were adopted in 1993. See, e.g., State v. McKinney, No. 102,906, 2010 WL 5185779, at *1 (Kan.App.2010) (unpublished opinion) (scoring a 2002 Oklahoma conviction based on the designation for the comparable Kansas offense at the time the Oklahoma offense was committed). But the Court of Appeals, including the Murdock panel, has adopted a different rule when the prior out-of-state crimes were committed before Kansas adopted the person/nonperson offense designation in 1993.

The Murdock panel held that pre–1993 offenses should be designated based on the current guidelines offenses, reasoning: “Kansas courts have routinely classified pre–1993 offenses as either person or nonperson for criminal history purposes by comparing the offenses to current guidelines offenses. (...

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