State v. Busch
| Decision Date | 22 July 2022 |
| Docket Number | 123,382 |
| Parties | State of Kansas, Appellee, v. Allen Lee Busch, Appellant. |
| Court | Court of Appeals of Kansas |
NOT DESIGNATED FOR PUBLICATION
Appeal from Seward District Court; Clint B. Peterson, judge.
Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
Russell Hasenbank, county attorney, and Derek Schmidt attorney general, for appellee.
Before Gardner, P.J., Hill and Isherwood, JJ.
Allen Lee Busch pleaded guilty to one count of possession of methamphetamine in December 2019. At sentencing, Busch agreed with the district court's finding that he had a criminal history score of A. The district court sentenced Busch to probation, but probation did not go well so the State moved to revoke it. The district court revoked Busch's probation and ordered him to serve his underlying 40-month prison sentence. Busch makes three arguments to us on appeal (1) He is serving an illegal sentence because the State failed to prove that his prior out-of-state convictions were scored properly; (2) the district court abused its discretion when it revoked his probation and imposed the underlying sentence based on "technical violations"; and (3) remand is warranted to enable the district court to issue a nunc pro tunc order to correct a clerical error in the journal entry of sentencing. A careful review of the record before us reveals that affirming the district court's decision is the most appropriate outcome in this matter. That is, the State satisfied its burden to prove Busch's criminal history score and the district court's decision to order Busch to serve his underlying sentence was reasonable. Finally, we agree that the district court's journal entry from the probation violation hearing contains a clerical error which must be corrected.
In August 2019, a Liberal police officer found illicit drugs during a valid search of Allen Busch's backpack. Soon thereafter, the State charged Busch with one count each of possession of methamphetamine, possession of oxycodone, and possession of drug paraphernalia. Busch later agreed to plead no contest to the possession of methamphetamine charge and the State agreed to dismiss the remaining charges. Busch entered his plea in December 2019.
Between the plea hearing and sentencing, the State prepared a presentence investigation (PSI) report. The criminal history section of the report outlined five person felony convictions from New Jersey: three for burglary under N.J. Stat. Ann. § 2C:18-2 (West 1981) in 1985, one for criminal trespass under N.J. Stat. Ann. § 2C:18-3a (West 1981) in 1989, and one for third-degree burglary under N.J. Stat. Ann. § 2C:18-2 (West 1995) in 1995. In the "Description" box for each conviction, the PSI author noted "(Residential)" after the type of crime. The report further reflected that Busch's criminal history also contained 1 additional person felony, 14 nonperson felonies, 2 person misdemeanors, and 5 nonperson misdemeanors. As a result of this collective history, Busch fell within the category A criminal history score classification. Thus, under the sentencing guidelines, he was presumptively prison bound for between 37 and 42 months.
At Busch's sentencing hearing, the State recommended the district court follow the parties' agreement and depart to a term of probation in lieu of prison. In support thereof, the State noted that Busch received drug treatment, was employed at a wastewater treatment plant, attended therapy, and was on medication to treat his bipolar disorder. The district court then shared the following exchange with Busch:
The district court accepted the plea and the parties' recommendation to grant 18 months' probation with an underlying prison term of 40 months.
Roughly four months later, the State filed a motion alleging Busch violated two specific probation terms, on multiple occasions he neglected his obligation to report to his probation officer as directed, and he failed to refrain from the use of alcohol and illicit drugs. The district court conducted a hearing on the State's motion and asked Busch to describe his probation violations. Busch responded, "I didn't call in and I was at a liquor store." He asserted that he only entered the liquor store to purchase cigarettes but agreed that his mere presence in the establishment ran afoul of his probation terms. Busch then explained that his failures to report largely stemmed from his mother's recent hospitalization along with the coronavirus pandemic. The State, in support of its position that the court should order Busch to serve his underlying sentence, noted that the original sentence of probation was the product of a dispositional departure. Busch acknowledged he violated the terms of his probation but implored the court to afford him another opportunity so he could care for his sick mother. Unpersuaded, the district court found that Busch received the privilege of probation through a departure but failed to take his obligations seriously. Thus, given the occurrence of violations which the court deemed "significant," it determined that imposition of the underlying sentence was appropriate.
Following the hearing, the State prepared a journal entry which stated that the court revoked probation because Busch absconded. It also failed to note that Busch's original sentence resulted from a dispositional departure. Both parties signed the document, however, and it was approved by the district court.
Busch timely appeals.
The State Satisfied its Burden to Prove Busch's Criminal History Score.
Busch first argues the State failed to meet its burden of proving that his prior New Jersey convictions were person felonies. He cites the corresponding sections of New Jersey's criminal code and claims the possibility exists that those convictions are not person felonies under the test set forth in K.S.A. 2019 Supp. 21-6811(e)(3)(B). The State responds that it satisfied its burden to prove Busch's criminal history score.
This court reviews a district court's decision that the State met its burden to prove the classification of prior convictions for substantial competent evidence. State v Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019). When a reviewing court must interpret K.S.A. 2019 Supp. 21-6814, which governs the burden of proof for criminal history scores, its review is unlimited. State v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019).
Busch claims he is serving an illegal sentence under K.S.A. 2021 Supp. 22-3504(a) and we have leave to correct it at any time. He directs us to Obregon as support for his contention because in that case the State failed to successfully prove that Obregon's prior Florida convictions were person felonies for criminal history purposes under the relevant statutory test. But Obregon is arguably distinguishable from Busch's case because Obregon did not avow for his criminal history score on the record as counsel did for Busch did here. See 309 Kan. at 1275-76.
However, we acknowledge that the authority to admit prior criminal history belongs to the offender, not defense counsel. State v. Vandervort, 276 Kan. 164, 175-76, 72 P.3d 925 (2003), overruled on other grounds State v. Dickey, 301 Kan. 1018, 1032, 350 P.3d 1054 (2015). Thus, we must assess the merits of Busch's illegal sentence claim. He contends that the preparer of his PSI report may have improperly classified his New Jersey convictions as person felonies under the out-of-state conviction classification test set forth in K.S.A. 2019 Supp. 21-6811(e)(3)(B). The State accurately observes that the PSI report contains a notation specifically designating Busch's out-of-state criminal trespass and burglary convictions as "residential," which properly convert to person felonies under the statutory test.
The classification of prior offenses for criminal history purposes involves statutory interpretation, which presents a question of law subject to unlimited appellate review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018). Effective May 2019, the Kansas Legislature amended K.S.A. 21-6811 to replace the old "comparable offense" test with one of a simpler variety to determine whether an out-of-state felony constitutes a person or nonperson crime. State v. Hasbrouck, 62 Kan.App.2d 50, 52-53, 506 P.3d 924 (2022). Under the old test, Kansas courts determined whether prior out-of-state convictions were person or nonperson offenses by juxtaposing the out-of-state statutes with the "comparable" Kansas offense. If a comparable crime existed in Kansas, the out-of-state conviction was classified as a person crime; if not, it fell under the umbrella of a nonperson crime. K.S.A. 2018 Supp. 21-6811(e)(3); State v. Baker, 58 Kan.App.2d 735, 738-39, 475 P.3d 24 (2020). Given that Busch committed his current crime of conviction in August 2019, this new test controls. Thus, we are tasked with examining the elements of the out-of-state statutes to see if they "are written to help protect innocent people." Hasbrouck, 62 Kan.App.2d at 53. To that end, if the out-of-state statutes include any of the elements listed as "circumstances" in the Kansas statute, they are person crimes; if they contain no such elements, they are nonperson crimes. K.S.A. 2019 Supp. 21-6811(e)(3)(B).
Busch's PSI report lists three New Jersey burglaries from 1985, 1989, and 1995. In those years, New Jersey's statute outlawing burglary-N.J. Stat. Ann. § 2C:18-2-defines the offense as follows:
To continue reading
Request your trial