State v. Coleman

• Decision Date: 03 April 2020
• Docket Number: 115,295 ,Nos. 115,293 , 115,294 , 115,305,s. 115,293
• Citation: 460 P.3d 368
• Parties: STATE of Kansas, Appellee, v. Jacqueline L. COLEMAN, Appellant.
• Court: Kansas Supreme Court

460 P.3d 368

STATE of Kansas, Appellee,

v.Jacqueline L. COLEMAN, Appellant.

Nos. 115,293

115,294

115,295

115,305

Supreme Court of Kansas.

Opinion filed April 3, 2020.

Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

This is a consolidated appeal challenging sentences imposed for crimes occurring both before and after statutory amendments in 2015 to the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq. The common issue is whether the district court properly scored a prior 1992 Kansas involuntary manslaughter conviction as a person felony for criminal history purposes. The arguments and rationale differ depending on the timing of the crime, but the outcome is the same. We affirm.

In the direct appeal, which concerns two 2015 thefts committed after changes were made to the revised KSGA, we adopt the identical-or-narrower test from State v. Wetrich , 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018) (statute under which a prior out-of-state conviction was obtained must be identical to or narrower than the crime to which it is compared for the two to be comparable). We hold the Wetrich test should also be used for Kansas crimes committed before the sentencing guidelines used the person or nonperson designations. And applying that test for the sentencings on the 2015 convictions, the prior 1992 Kansas involuntary manslaughter conviction at issue is comparable to the current Kansas involuntary manslaughter statute on reckless killings—a person crime. This means the district court correctly classified the 1992 Kansas involuntary manslaughter conviction as a person felony in the sentencings for the 2015 thefts.

As to the probation revocation appeals for the sentences imposed on the pre-2015 thefts, Coleman asks us to use the identical-or-narrower test from Wetrich , instead of the comparability test used in our caselaw before the 2015 revisions, which Coleman perceives as less favorable to her cause. See State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015) ; see also State v. Williams , 299 Kan. 870, 873, 326 P.3d 1070 (2014) (when examining prior conviction statutes, they need only be comparable, not identical). But we need not make that choice because the outcome would be the same under either test. No relief is available.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Jacqueline Coleman in three separate cases with theft after prior convictions. See K.S.A. 2011 Supp. 21-5801(b)(6) ; K.S.A. 2013 Supp. 21-5801(b)(6). Those thefts occurred May 2, 2012, January 29, 2013, and February 22, 2014. She pleaded guilty to each offense. The presentence investigation reports recommended a C criminal history score, based in part on Coleman's 1992 Kansas conviction for involuntary manslaughter that was scored as a person felony.

The court conducted a single sentencing hearing in August 2014. It granted Coleman's request for dispositional departure and released her to 12 months' probation. The court imposed three consecutive underlying 13-month prison sentences—the high grid-box sentence for a severity level 9 felony and a C criminal history score. See K.S.A. 2018 Supp. 21-6804(a) (sentencing grid for nondrug felony crimes).

Eight months later, the State charged Coleman with two new counts of theft after prior convictions. Those occurred April 25, 2015. She again pleaded guilty.

The new convictions caused the district court to revoke Coleman's probation in the earlier three cases. It then imposed a modified eight-month prison sentence for the 2012 conviction, and the original, consecutive 13-month underlying prison sentences for the 2013 and 2014 convictions. For the two new 2015 convictions, the court denied Coleman's request for a dispositional departure and sentenced her to the low-grid box 11-month prison term for one conviction, and a concurrent 5-month prison term for the other. It ordered these sentences to run consecutive to the consecutive sentences in the earlier three cases.

Coleman timely appealed and the four cases were consolidated. Coleman argued the district court erroneously classified her 1992 involuntary manslaughter conviction as a person crime and abused its discretion by revoking her probation. A Court of Appeals panel affirmed on both points. State v. Coleman , No. 115,293, 2017 WL 1104789 (Kan. App. 2017) (unpublished opinion). Coleman timely petitioned for review.

We granted review only on the criminal history classification. 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).

SENTENCING FOR THE 2015 THEFT CONVICTIONS

The first question is whether the district court properly scored Coleman's 1992 Kansas involuntary manslaughter conviction as a person felony when sentencing her in the 2015 case. This raises two sub-issues: (1) what rule should govern a pre-KSGA Kansas offense's classification for these convictions, and (2) was the classification for Coleman's 1992 Kansas involuntary manslaughter conviction correct under that rule? As to the first question, it is important to note we have not yet decided whether the Wetrich identical-or-narrower test, which dealt with a prior out-of-state conviction, applies to a pre-KSGA Kansas conviction. See Wetrich , 307 Kan. at 562, 412 P.3d 984.

Standard of review

Classification of prior offenses for criminal history purposes involves statutory interpretation. This is a question of law subject to unlimited review. Wetrich , 307 Kan. at 555, 412 P.3d 984.

Discussion

(1) What legal rule governs?

At the time of Coleman's 2015 crimes, the sentencing statute stated:

"(d) Except as provided in K.S.A. 21-6815, and amendments thereto, the following are applicable to determining an offender's criminal history classification:

....

(2) All prior adult felony convictions, including expungements, will be considered and scored. Prior adult felony convictions for offenses that were committed before July 1, 1993, shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed ." (Emphasis added.) K.S.A. 2018 Supp. 21-6810.

This provision became effective on April 2, 2015, just a few weeks before Coleman committed the 2015 thefts. See L. 2015, ch. 5, § 1. It is the applicable statute.

Before the statutory amendment, K.S.A. 21-6810 directed that all prior felony convictions be considered and scored. But the statute did not give explicit directions on how to score pre-KSGA offenses. See K.S.A. 2014 Supp. 21-6810(d)(2). That legislative silence caused this court to hold that in a case involving the person-crime classification for an out-of-state crime, the determination should be made by referencing the comparable Kansas crime at the time the out-of-state crime was committed. State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014) ( Murdock I ), overruled by Keel , 302 Kan. 560, 357 P.3d 251. The Murdock I decision resulted in a legislative change to K.S.A. 21-6810. In Keel , we noted this statutory revision added

"explicit language to K.S.A. 2014 Supp. 21-6810 ... stating that, for criminal history purposes, a conviction or juvenile adjudication for an offense committed prior to July 1, 1993, shall be scored as a person or nonperson crime based on the classification in effect for the comparable offense under the Kansas Criminal Code when the current crime of conviction was committed. The legislature also stated its explicit intention that these amendments applied retroactively." Keel , 302 Kan. at 563, 357 P.3d 251.

More recently in Wetrich , 307 Kan. 552, 412 P.3d 984, the court adopted a construction of the KSGA's similar provision for out-of-state convictions. Wetrich held that comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed were to be referred to when classifying those out-of-state convictions as person or nonperson offenses. See K.S.A. 2018 Supp. 21-6811(e)(3). The Wetrich court held,

"For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562, 412 P.3d 984.

In reaching the conclusion that "comparable" means the prior offense must have elements identical to, or narrower than, the Kansas crime to which it is being compared, the Wetrich court first determined the word "comparable" is ambiguous. 307 Kan. at 559-60, 412 P.3d 984 (noting dictionary definitions suggested term could mean either identical or merely similar). Next, the court observed the KSGA's legislative history emphasized a desire for uniformity in sentencing among similarly situated offenders. 307 Kan. at 560-61, 412 P.3d 984. It reasoned the alternative to the identical-or-narrower test—which it viewed as "an imprecise, ad hoc comparison" that relied on " ‘guesswork and intuition’ "—undermined this legislative purpose and threatened to violate due process. 307 Kan. at 561, 412 P.3d 984. By contrast, it explained, the identical-or-narrower test furthers the act's "goal of an even-handed, predictable, and consistent application of the law across jurisdictional lines." 307 Kan. at 561-62, 412 P.3d 984.

Given the similarity in the applicable statutory language, we see no reason why the Wetrich court's statutory analysis should not apply with equal force to the phrase "a comparable...