State v. Ewing

• Decision Date: 02 August 2019
• Docket Number: 641,Nos. 116,116,643,116,642,s. 116
• Citation: 446 P.3d 463
• Parties: STATE of Kansas, Appellee, v. Joshua EWING, Appellant.
• Court: Kansas Supreme Court

446 P.3d 463

STATE of Kansas, Appellee,

v.Joshua EWING, Appellant.

Nos. 116

641

116,642

116,643

Supreme Court of Kansas.

Opinion filed August 2, 2019.

Kasper Schirer, of Kansas Appellate Defender Office, and Kimberly Streit Vogelsberg, of the same office, were on the briefs for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

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

Joshua Ewing appeals his sentencing court's classification of two Arkansas misdemeanors as person offenses when determining his criminal history score after he pleaded guilty to three counts of felony theft and one count of attempted aggravated burglary. He questions: (1) whether his Arkansas misdemeanor conviction for second-degree false imprisonment has a comparable Kansas person crime; (2) whether he can challenge for the first time on appeal the classification of his Arkansas misdemeanor conviction for third-degree domestic battery when it is not clear which provision he was convicted under; and (3) if that second claim can be raised, whether the Arkansas third-degree domestic battery has a comparable Kansas person crime. We vacate Ewing's sentences in each of the three docketed cases in this appeal and remand each for resentencing with directions to score the second-degree false imprisonment conviction as a nonperson offense and to further consider the Arkansas battery.

We hold there is no comparable Kansas person crime to the Arkansas false imprisonment conviction. We further conclude insufficient evidence supports the person-crime classification for the Arkansas battery conviction because the record does not reflect which statutory provision Ewing was convicted under. The district court must conduct further proceedings before classifying that conviction.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Ewing in three cases with felony theft, with an additional aggravated burglary count charged in one of those cases. The State alleged the crimes occurred in 2015 and 2016. Ewing pleaded guilty in all three cases, which resulted in three felony theft convictions and a conviction on a reduced charge of attempted aggravated burglary. The charges in our Docket No. 116,642 stem from acts allegedly occurring after the guilty plea in Docket No. 116,641, but before sentencing. Likewise, the charge in No. 116,643 stems from an act occurring after the guilty pleas in Nos. 116,641 and 116,642, but before sentencing. To resolve all three cases the parties jointly recommended Ewing receive a total 36-month prison sentence.

Each presentence investigation report included two Arkansas misdemeanors that combined with a Kansas misdemeanor for conversion to a person felony. See K.S.A. 2018 Supp. 21-6811(a) (providing every three prior class A and B person misdemeanors are rated as a single person felony for criminal history purposes). These Arkansas offenses were "Battery-3rd Degree-Domestic" under Ark. Code Ann. § 5-13-203 and "False Imprisonment-2nd Degree" under Ark. Code Ann. § 5-11-104. Ewing's counsel did not object to this.

The district court followed the plea agreement. In No. 116,641, it sentenced Ewing to 15 months' imprisonment for theft. In No. 116,642, it sentenced him to a combined 36 months' imprisonment for attempted aggravated burglary and theft, to run concurrent with the sentence in No. 116,641. And in No. 116,643 it sentenced him to 15 months' imprisonment for theft, also to run concurrent with the sentence in No. 116,641.

Ewing timely appealed, arguing the district court erred by classifying his Arkansas convictions as person offenses. He asserted these classifications required judicial fact-finding that violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States , 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013).

A Court of Appeals panel held the Arkansas false imprisonment conviction was properly scored as a person crime. It concluded the Arkansas offense was narrower than the comparable Kansas criminal restraint statute, so there was no error regardless of whether the required comparison was governed by this court's decision in State v. Vandervort , 276 Kan. 164, 72 P.3d 925 (2003), or the identical-or-narrower test Ewing advocated based on Descamps . State v. Ewing , No. 116,641, 2017 WL 6506574, at *4 (Kan. App. 2017) (unpublished opinion).

But the panel vacated the sentences in each case and remanded for resentencing because the record was unclear what statute or subsection the Arkansas battery offense arose under. The panel concluded there might not be a comparable Kansas person crime depending on what version of the Arkansas offense Ewing committed. It directed the district court to "examine appropriate documents related to the conviction to determine which of the statute's alternative elements formed the basis of Ewing's prior conviction." 2017 WL 6506574, at *7.

The panel rejected the State's procedural argument that it should just presume the crimes were properly classified because, in its view, Ewing did not lodge an objection and failed to designate a record sufficient to identify the Arkansas offense in question. The panel reasoned that Kansas caselaw "has made it clear that criminal history challenges can be raised for the first time on appeal even without an objection by the defendant at sentencing." 2017 WL 6506574, at *7 (citing State v. Dickey , 301 Kan. 1018, 1034, 350 P.3d 1054 [2015] ).

Both sides timely sought review. 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).

ARKANSAS FALSE IMPRISONMENT IS NOT A PERSON CRIME

Ewing contends the Arkansas false imprisonment conviction should not be scored as a person crime. The classification of prior offenses for criminal history purposes involves interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2018 Supp. 21-6801 et seq. Statutory interpretation is a question of law subject to unlimited review. State v. Wetrich , 307 Kan. 552, 555, 412 P.3d 984 (2018).

Under the revised KSGA,

"(1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offender's criminal history.

"(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction:

....

"(3) The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime." K.S.A. 2018 Supp. 21-6811(e).

When the district court pronounced Ewing's sentences, Kansas caselaw construed the statute's predecessor, K.S.A. 21-4711(e), to mean that the offenses need only be comparable—not identical—when determining criminal history. "[T]he comparable offense" was "the closest approximation of Kansas statutes to" the out-of-state crime. Vandervort , 276 Kan. at 179, 72 P.3d 925.

But in Wetrich , this court announced a different statutory interpretation while Ewing's appeal was pending. The State argues Wetrich should not apply. We have rejected a similar argument. See, e.g., State v. Murdock , 309 Kan. 585, 591-92, 439 P.3d 307 (2019) ( Murdock II ) ("[A] party may seek and obtain the benefit of a change in the law during the pendency of a direct appeal, but a party moving to correct an illegal sentence is stuck with the law in effect at the time the sentence was pronounced."); State v. Keel , 302 Kan. 560, 562, 357 P.3d 251 (2015) (reaching merits of defendant's challenge to State v. Murdock , 299 Kan. 312, 319, 323 P.3d 846 [2014] [ Murdock I ], when defendant "filed a motion with [the Supreme] [C]ourt to correct an illegal sentence" after review was granted in his direct appeal).

The State is also wrong when it claims K.S.A. 2018 Supp. 22-3504(3) bars Wetrich 's application to Ewing's direct appeal. Under that statute, "[a] sentence is not an ‘illegal sentence’ because of a change in the law that occurs after the sentence is pronounced." Murdock II distinguishes sentencing arguments raised on direct appeal from "illegal sentence" claims under K.S.A. 22-3504. Murdock II , 309 Kan. at 591-92, 439 P.3d 307.

We further reject the State's contention that Ewing's reliance on Wetrich is a new issue. Ewing argued from this appeal's outset that his Arkansas offenses were improperly scored as person crimes and advocated for an "identical (or narrower) elements test" for the comparison required by statute. He even argued the test should be adopted on statutory grounds—an approach Wetrich adopted.

In Wetrich , the 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 Wetrich , the Missouri burglary statute defined the structure involved to include "non-dwelling places." 307 Kan. at 563, 412 P.3d 984. This was broader than the Kansas burglary-of-a-dwelling statute, under which the structure must be a dwelling. 307 Kan. at 563-64, 412 P.3d 984. And the Missouri statute required a specific intent to "commit any crime," which was broader than the Kansas statute's "intent to commit a felony, theft, or sexual battery therein." 307 Kan. at 563, ...