State v. Foshag

• Docket Number: 125,466
• Decision Date: 22 November 2023
• Parties: State of Kansas, Appellee, v. Frederick John Foshag Sr., Appellant.
• Court: Kansas Court of Appeals

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State of Kansas, Appellee,
v.
Frederick John Foshag Sr., Appellant.

No. 125,466

Court of Appeals of Kansas

November 22, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Crawford County District Court; MARY JENNIFER BRUNETTI, judge. Submitted without oral argument.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Kris W. Kobach, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., SCHROEDER and COBLE, JJ.

MEMORANDUM OPINION

PER CURIAM:

In July 2022, Frederick J. Foshag Sr. pled no contest to several crimes occurring between January 2020 and September 2021. Before sentencing, the district court accepted classification of Foshag's 2001 Colorado conviction for "menacing" as a person felony. On appeal, Foshag argues that under K.S.A. 2019 Supp. 21-6811(e)(3)(B), his 2001 Colorado conviction should have been classified as a nonperson felony when calculating his criminal history score. We disagree. The version of the Colorado statute applicable at the time of Foshag's conviction included an element of "threatening or causing fear of bodily or physical harm or violence, causing terror, physically intimidating or harassing any person" as described in K.S.A. 2019 Supp. 21-6811(e)(3)(B)(i)(b).

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Because this characteristic was present in the Colorado statute, we find no error by the district court.

FACTUAL AND PROCEDURAL BACKGROUND

On June 10, 2022, Foshag pled no contest in four cases: residential burglary, a severity level 7, person felony; non-residential burglary, a severity level 7, nonperson felony; and two counts of theft, both severity level 9, nonperson felonies. The acts precipitating these convictions occurred between January 2020 and September 2021. In each case, Foshag's 2001 Colorado conviction for "Menacing with Deadly Weapon" under Colo. Rev. Stat. § 18-3-206(1)(a), (b) (2001), was scored as a person felony. On July 22, 2022, the district court sentenced Foshag to consecutive terms of 27 months in prison for the residential burglary, 29 months for the nonresidential burglary, and 14 months for each theft conviction. Foshag now appeals imposition of his sentences.

DID THE DISTRICT COURT ERR BY SCORING FOSHAG'S PRIOR COLORADO CONVICTION AS A PERSON FELONY?

On appeal, Foshag argues his Colorado felony for menacing should have been characterized as a nonperson felony in calculating his criminal history score. Although Foshag admits he did not raise this issue before the district court, a defendant may claim for the first time on appeal that his sentence was illegal due to misclassification of a prior conviction as a person or nonperson conviction. State v. Dickey, 301 Kan. 1018, 1032, 350 P.3d 1054 (2015); see also State v. Corby, 314 Kan. 794, 797, 502 P.3d 111 (2022) (noting the defendant did not raise claim that classification was illegal).

Because classification of a prior out-of-state conviction requires statutory interpretation, this court conducts an unlimited review of the classification of Foshag's Colorado conviction. State v. Terrell, 315 Kan. 68, 70, 504 P.3d 405 (2022) ("The

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classification of prior offenses for criminal history purposes involves statutory interpretation, which presents a question of law subject to unlimited appellate review.").

Applicable Legal Principles

Our discussion of whether Foshag's Colorado conviction was properly classified must begin with the revised Kansas Sentencing Guidelines Act (KSGA), which essentially combines the severity of a defendant's current crime with his or her criminal history to reach a presumptive sentence. K.S.A. 2022 Supp. 21-6803(q). Under the KSGA, a defendant's criminal history score turns on his or her prior convictions, including out-of-state convictions. K.S.A. 2022 Supp. 21-6809; K.S.A. 2022 Supp. 21-6811(e); State v. Samuels, 313 Kan. 876, 878, 492 P.3d 404 (2021).

The classification of out-of-state convictions is outlined in the KSGA. Effective May 23, 2019, the Kansas Legislature enacted a test for courts to apply when deciding whether an out-of-state felony is a person or nonperson crime. Samuels, 313 Kan. at 878; State v. Hasbrouck, 62 Kan.App.2d 50, 52, 506 P.3d 924 (2022); see also K.S.A. 2019 Supp. 21-6811(e)(3)(B). In doing so, regarding felonies, the Legislature effectively abrogated the previous judicially created "'comparable offense'" rule wherein courts compared out-of-state convictions to analogous Kansas crimes to classify them as person or nonperson convictions for use in calculating a defendant's criminal history score. 62 Kan.App.2d at 52-53.

Because Foshag committed his current crimes of conviction in 2020 and 2021, the 2019 statutory test applies to classify his Colorado conviction. Under this test, the district court conducts a two-step analysis.

First, the court determines whether the out-of-state conviction was a misdemeanor or a felony based on the law of that state. State v. Baker, 58 Kan.App.2d 735, 738, 475 P.3d 24 (2020).

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"If a crime is a felony in the convicting...