State v. Dawson, 113, 233.

• Decision Date: 13 May 2016
• Docket Number: No. 113, 233.,113, 233.
• Parties: STATE of Kansas, Appellee, v. Brandon M. DAWSON, Appellant.
• Court: Kansas Court of Appeals

376 P.3d 93 (Table)

STATE of Kansas, Appellee

v.Brandon M. DAWSON, Appellant.

No. 113, 233.

Court of Appeals of Kansas.

May 13, 2016.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin and Kyle Edelman, assistant district attorneys, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., BRUNS, J., and WALKER, S.J.

MEMORANDUM OPINION

PER CURIAM.

Brandon M. Dawson appeals the district court's denial of his motion to correct an illegal sentence. He asserts that the district court should not have classified two prior juvenile adjudications for conspiracy to commit burglary of a dwelling as person felonies for the purposes of calculating his criminal history score. Specifically, Dawson argues that K.S.A.2013 Supp. 21–6811(g)

—which is the part of the Kansas Sentencing Guidelines Act (KSGA) that addresses the scoring of certain inchoate crimes (solicitation, attempt, and conspiracy) for the purposes of determining a defendant's criminal history—excludes juvenile adjudications. We disagree and conclude that after considering the KSGA as a whole, the district court appropriately counted Dawson's prior juvenile adjudications for conspiracy to commit burglary of a dwelling as person felonies. Thus, we affirm.

Facts

The facts of this case are undisputed. On July 11, 2013, Dawson pled guilty to attempted aggravated burglary—a person felony—and to theft of less than $1,000–a nonperson misdemeanor. A presentence investigation (PSI) report revealed that Dawson had a significant criminal history, including two in-state juvenile adjudications in 2006 for conspiracy to commit burglary of a dwelling. Accordingly, the PSI report suggested that he had a criminal history score of A.

At sentencing, Dawson's attorney stated on the record that his client had no objection to his criminal history score as reflected in the PSI report. As such, the district court sentenced Dawson to serve 34 months in prison for the attempted aggravated burglary conviction and imposed a concurrent 12–month sentence on the misdemeanor theft conviction. In addition, the district court imposed 12 months' postrelease supervision and ordered Dawson's sentence to run consecutive to a prior sentence imposed in an unrelated case. It appears from the record that Dawson did not file a direct appeal.

On October 10, 2014, Dawson filed a motion to correct an illegal sentence, arguing that the district court erroneously classified his two 2006 juvenile adjudications for conspiracy to commit burglary of a dwelling as person felonies for the purpose of calculating his criminal history score. Subsequently, the district court entered a memorandum decision denying Dawson's motion, citing K.S.A.2013 Supp. 21–6811(g)

for authority to score the two juvenile adjudications as person felonies and noting that such adjudications do not decay. Thereafter, Dawson filed a timely notice of appeal.

Analysis

On appeal, Dawson contends that his two 2006 juvenile adjudications for conspiracy to commit burglary of a dwelling should not have been scored as person felonies because K.S.A.2013 Supp. 21–6811(g)

–which is part of the KSGA-permits a district court to consider the inchoate crimes of solicitation, attempt, and conspiracy in an offender's criminal history only if they result from an adult conviction rather than from a juvenile adjudication. Specifically, he argues that because the legislature omitted “a mechanism for how to score prior felony juvenile adjudications for conspiracy,” they should have been scored as nonperson felonies. In response, the State contends that the statutory framework of the KSGA reflects that the legislature intended for juvenile adjudications to be scored in the same manner as adult convictions for the purpose of determining criminal history.

Classification of Prior Juvenile Adjudications

As a preliminary matter, we note that the Kansas Supreme Court has held that “[u]nder K.S.A. 22–3504(1)

, a defendant may challenge for the first time on appeal the classification of his or her prior convictions and/or the resulting criminal history score used to sentence him or her under the Kansas Sentencing Guidelines Act.” State v. Dickey, 301 Kan. 1018, Syl. ¶ 3, 350 P.3d 1054 (2015) ; see K.S.A. 22–3504(1) (“The court may correct an illegal sentence at any time.”). This is true even if the defendant failed to object to how the sentencing court classified his or her prior convictions. State v. Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015) ; Dickey, 301 Kan. at 1032. Consequently, we find that the issue presented by Dawson in this appeal is properly before us because it involves the classification of his prior convictions and the resulting criminal history score used by the district court to sentence him under the KSGA.

Turning to the merits of this appeal, whether a prior adjudication was properly classified as a person offense is a question of law over which we exercise unlimited review. State v. Cordell, 302 Kan. 531, 533–34, 354 P.3d 1202 (2015)

. Moreover, “[t]he most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.” State v. Keel, 302 Kan. 560, 572, 357 P.3d 251 (2015), cert. denied 136 S.Ct. 865 (2016). In Keel, the Kansas Supreme Court stressed the importance of interpreting various provisions of the KSGA “in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible.” 302 Kan. 560, Syl. ¶ 7 ; see also State v. Waggoner, 51 Kan.App.2d 144, 155–57, 343 P.3d 530, rev. denied 302 Kan. ––– (2015).

Accordingly, we find that it is appropriate to view the entire KSGA as a whole, and look

“to the overall design and purpose of the [Act] and construing the Act according to its spirit and reason in order to determine whether the omission at issue is a reasonable indication that the matter excluded is irrelevant to the statutory scheme and the legislative intent, or whether the omission is actually a ‘silence gap’ that undermines—and introduces ambiguity into—other aspects of the Act.” Keel, 302 Kan. at 573

.

The KSGA clearly defines the term “criminal history” to include “an offender's criminal record of adult felony, class A misdemeanor, class B person misdemeanor or select misdemeanor convictions and comparable juvenile adjudications at the time such offender is sentenced.” (Emphasis added.) K.S.A.2015 Supp. 21–6803(c)

. Likewise, K.S.A.2015 Supp. 21–6810(a) provides: “Criminal history categories contained in the sentencing guidelines grid are based on the following types of prior convictions: Person felony adult convictions, nonperson felony adult convictions, person felony juvenile adjudications, nonperson felony juvenile adjudications ....“ (Emphasis added.)

Furthermore, K.S.A.2013 Supp. 21–6811(f)

provides that—subject to certain exceptions not material to the present case—“juvenile adjudications will be applied in the same manner as adult convictions. Out-of-state juvenile adjudications will be treated as juvenile adjudications in Kansas.” (Emphasis added.) In addition, K.S.A.2013 Supp. 216811(g) states: “A prior felony conviction of an attempt, a conspiracy or a solicitation ... to commit a crime shall be treated as a person or nonperson crime in accordance with the designation assigned to the underlying crime.” (Emphasis added.)

As Dawson points out, the term “juvenile adjudication” is not found in K.S.A.2013 Supp. 21–6811(g)

. Of course, the term “adult conviction” is also not found in subsection (g). Instead, this subsection of the KSGA uses the generic term “prior felony conviction.” According to Dawson, the omission of a specific reference to juvenile adjudications in subsection (g) means his two juvenile adjudications for conspiracy to commit burglary of a dwelling should be counted as nonperson crimes for the purpose of calculating his criminal history score. We disagree.

Perhaps it would have been better had the legislature specifically mentioned prior adult convictions and prior juvenile adjudications in K.S.A.2013 Supp. 21–6811(g)

, as it has done elsewhere in the KSGA. Nevertheless, based on our review of the KSGA as a whole, we are persuaded that the legislature intended for both prior felony adult convictions and prior felony juvenile adjudications for an attempt, conspiracy, or solicitation to commit a crime to be considered for the purposes of determining an offender's criminal history score. Of course, whether a prior adult conviction or prior juvenile adjudication is ultimately scored as a person or nonperson crime is based on the designation assigned to the underlying crime at the time the current crime was committed. K .S.A.2013 Supp. 21–6811(g) ; Keel, 302 Kan. at 573.

We believe our conclusion is consistent with the Kansas Supreme Court's holding in Keel, in which it held that “the legislature intended for all prior convictions and juvenile adjudications ... to be considered and scored for purposes of determining an offender's criminal history score.” (Emphasis added.) 302 Kan. 560, Syl. ¶ 8

. Specifically, our Supreme Court found it significant that the term “prior convictions” as used in the KSGA is defined in K.S.A.1993 Supp. 21–4710(a) —now K.S.A.2015 Supp. 21–6810(a) —to include prior “juvenile adjudications” as one of the many classifications to be included in an offender's criminal history score. 302 Kan. at 577. Furthermore, our Supreme Court found it significant that under K.S.A.1993 Supp. 21–4710(d)(5) and (d)(6) —now K.S.A.2015 Supp. 21–6810(d)(3) —prior juvenile adjudications for person felonies do not decay and should be considered as part of an offender's criminal history. 302 Kan. at 579.

We also believe our conclusion is consistent with the holding of this court in Waggoner, in which an offender argued that his prior juvenile adjudication for attempted aggravated battery was improperly scored as a person felony. In Waggoner, this court also...