State v. O'Connor

Citation326 P.3d 1064
Decision Date13 June 2014
Docket NumberNos. 105,319,105,320.,s. 105,319
CourtUnited States State Supreme Court of Kansas
PartiesSTATE of Kansas, Appellee, v. Gregory Anthony O'CONNOR, Appellant.

OPINION TEXT STARTS HERE

Syllabus by the Court

1. Resolution of a criminal history sentencing issue involves the interpretation of various provisions of the sentencing guidelines. The interpretation of statutes is a question of law, and, thus, the scope of review is unlimited.

2. Out-of-state convictions and juvenile adjudications are used in classifying a Kansas offender's criminal history score. The out-of-state crime for which the offender was actually convicted or adjudicated in the other state is used to classify the offender's Kansas criminal history score, regardless of any other crime that the factual allegations could have supported.

3. In designating an out-of-state crime as a person or nonperson felony, the sentencing court shall refer to comparable Kansas offenses.

4. In Kansas, dwelling burglaries are classified as person felonies, whereas non-dwelling burglaries are classified as nonperson felonies. Consequently, an out-of-state burglary must involve a dwelling to be classified as a person felony for purposes of calculating a Kansas criminal history score.

5. Where Florida's definition of a third-degree burglary makes that crime applicable solely to nondwelling structures, that crime is comparable to a Kansas nondwelling burglary and, therefore, it must be classified as a nonperson felony for criminal history purposes.

Shawn E. Minihan and Patrick H. Dunn, of Kansas Appellate Defender Office, were on the briefs for appellant.

Melissa Jones, legal intern, Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

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

This is a consolidated appeal of two cases in which Gregory A. O'Connor pled nolo contendere to certain charges. He seeks review of the Court of Appeals decision to affirm the district court's classification of a prior Florida juvenile adjudication for third-degree burglary as a person felony for purposes of calculating his Kansas criminal history score. That designation increased the length of the aggregate sentence he is appealing here. Finding that the district court and Court of Appeals failed to use the specific crime for which O'Connor was actually adjudicated in Florida and instead impermissibly considered alleged facts that were not proved in the Florida adjudication, we vacate the sentences and remand to the district court for resentencing.

Factual and Procedural Overview

O'Connor entered nolo contendere pleas to aggravated robbery and possession of marijuana in case No. 09CR569 (No. 105,319) and to burglary and contributing to a child's misconduct in case No. 09CR729 (No. 105,320). At sentencing, O'Connor objected to that portion of his presentence investigation report (PSI) that classified a prior Florida juvenile adjudication as a person felony rather than a nonperson felony. The district court overruled O'Connor's objection, finding the person felony designation to be proper under Kansas law. That determination led to a criminal history score of B in the first case, and then adding that conviction to the calculation made the criminal history score for the second case an A. The court ran the felony sentences concurrently, resulting in a controlling term of 144 months' imprisonment.

O'Connor filed a timely appeal to the Court of Appeals, which affirmed the district court's determination that the prior Florida juvenile adjudication was a person felony. State v. O'Connor, No. 105,319, 2012 WL 686801, at *5 (Kan.App.2012) (unpublished opinion). The panel noted that, under K.S.A. 21–4711(e), the State of Kansas classifies an out-of-state crime as person or nonperson by looking at comparable Kansas crimes. Here, the comparable Kansas crime that would permit O'Connor's Florida burglary adjudication to be classified as a person felony would be burglary of a dwelling, i.e., the structure O'Connor burglarized in Florida had to be a dwelling. 2012 WL 686801, at *3–4 (citing K.S.A. 21–3715). The panel acknowledged that O'Connor's Florida plea agreement did not state that he burglarized a dwelling, but to the contrary, “his juvenile adjudication was for third-degree burglary, which would not satisfy Kansas' ‘dwelling’ requirement.” 2012 WL 686801, at *5.

Nevertheless, citing to prior Court of Appeals decisions, the panel declared that a Kansas sentencing court “may use underlying facts to determine if a burglary should be classified as a person or nonperson felony for criminal history purposes.” 2012 WL 686801, at *3. Then, the panel opined that, since the State's burden was only a preponderance of the evidence, it “merely needed to prove that it was more probably true than not true that O'Connor's prior burglary was of a dwelling.” 2012 WL 686801, at *4. The panel found that the State had met that burden of proof through two pieces of evidence—a Florida police report and a letter from O'Connor's mother—both of which contained allegations that O'Connor had broken into his mother's bedroom to steal money from her. 2012 WL 686801, at *4. Consequently, the panel held “these underlying facts support the conclusion that the trial court properly classified O'Connor's out-of-state juvenile adjudication as a person felony.” 2012 WL 686801, at *4.

This court granted O'Connor's timely filed petition for review under K.S.A. 20–3018(b), obtaining jurisdiction under K.S.A. 60–2101(b).

Classification of Out–of–State Juvenile Adjudication

The sole issue presented in this review is whether the Court of Appeals erred in affirming the district court's classification of O'Connor's prior Florida juvenile adjudication for burglary as a person felony for purposes of computing his criminal history score under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. Although the Court of Appeals looked at the sufficiency of the evidence to support the district court's factual finding that O'Connor had burglarized a dwelling in Florida, we confine our review to the question of whether the district court correctly applied the KSGA.

Standard of Review

‘Resolution of a criminal history sentencing issue involves the interpretation of various provisions of the sentencing guidelines. The interpretation of statutes is a question of law, and, thus, the scope of review is unlimited.’ State v. Taylor, 262 Kan. 471, Syl. ¶ 4, 939 P.2d 904 (1997).” State v. Vandervort, 276 Kan. 164, 173, 72 P.3d 925 (2003); see also State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009) (Whether a district court has correctly interpreted and applied the provisions of the KSGA is a question of law subject to de novo review.).

Analysis

We discern that the question presented involves an interpretation of three statutes: (1) K.S.A. 21–4711(e), a part of the KSGA; (2) K.S.A. 21–3715, the Kansas burglary statute; and (3) Fla. Stat. § 810.02 (2000), the Florida burglary statute. Of course, the most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained from the plain and unambiguous language of the statute. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Moreover, in the criminal context, [t]he general rule is that a criminal statute must be strictly construed in favor of the accused.’ Vandervort, 276 Kan. at 173, 72 P.3d 925 (quoting Taylor, 262 Kan. 471, Syl. ¶ 5, 939 P.2d 904).

We begin with K.S.A. 21–4711(e), which governs the effect of prior out-of-state crimes on a Kansas criminal history score. That statute provides, in relevant part:

“Out-of-state convictions and juvenile adjudications will be used in classifying the offender's criminal history.... The state of Kansas shall classify the 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.... The facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence.” K.S.A. 21–4711(e).

The first plain and unambiguous statutory directive is that [o]ut-of-state convictions and juvenile adjudications will be used” in the criminal history calculus. (Emphasis added.) K.S.A. 21–4711(e). The provision does not say that the crime initially contained in the out-of-state charging document will be used. It does not say that a crime which could have been supported by the victim's allegations will be used. It does not say that the crime deemed most appropriate under the circumstances by one or more Kansas judges will be used. It plainly means that O'Connor's Kansas criminal history score is to be calculated based upon the Florida crime for which he was actually adjudicated in that state, regardless of any other crime that might have been supported by factual allegations. Here, no one disputes that the out-of-state juvenile adjudication was for the crime of third-degree burglary.

The next directive in the classification provision is to refer to comparable offenses. Obviously, the comparable Kansas offense for a Florida burglary would be our version of burglary. In 2000, Kansas defined burglary as

“knowingly and without authority entering into or remaining within any:

(a) Building, manufactured home, mobile home, tent or other structure which is a dwelling, with intent to commit a felony, theft or sexual battery therein;

(b) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein; or

(c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexual battery therein.” (Emphasis...

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9 cases
  • State v. James
    • United States
    • Kansas Supreme Court
    • 8 Mayo 2015
    ...327 P.3d 425. Where such language is plain and unambiguous, it is typically determinative of legislative intent. State v. O'Connor, 299 Kan. 819, 822, 326 P.3d 1064 (2014). We must, however, construe statutes to avoid unreasonable or absurd results. Northern Natural Gas Co. v. ONEOK Field S......
  • State v. Buell
    • United States
    • Kansas Court of Appeals
    • 24 Junio 2016
    ...with Kansas Supreme Court precedent but contrary to some more recent opinions emanating from our court. See State v. O'Connor , 299 Kan. 819, 822, 326 P.3d 1064 (2014) (using K.S.A. 21–4711 [e], the prior codification of K.S.A. 2015 Supp. 21–6811 [e], to classify a prior Florida burglary ad......
  • Henson v. Davis, 112,292.
    • United States
    • Kansas Court of Appeals
    • 16 Octubre 2015
    ...Kan. at 906 . Where such language is plain and unambiguous, it is typically determinative of legislative intent. State v. O'Connor , 299 Kan. 819, 822, 326 P.3d 1064 (2014). We must, however, construe statutes to avoid unreasonable or absurd results. Northern Natural Gas Co. v. ONEOK Field ......
  • Stanley v. Sullivan
    • United States
    • Kansas Supreme Court
    • 31 Octubre 2014
    ...look to the plain and unambiguous language of a statute as the primary basis for determining legislative intent. State v. O'Connor, 299 Kan. 819, 822, 326 P.3d 1064 (2014).Although the Court of Appeals superficially acknowledged this rule of statutory construction, it proceeded to set out a......
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