State v. Gilley, No. 99,156.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtDavis
Citation223 P.3d 774
PartiesSTATE of Kansas, Appellant, v. Deanna GILLEY, Appellee.
Docket NumberNo. 99,156.
Decision Date22 January 2010
223 P.3d 774
STATE of Kansas, Appellant,
v.
Deanna GILLEY, Appellee.
No. 99,156.
Supreme Court of Kansas.
December 19, 2008.
January 22, 2010.

[223 P.3d 775]

Amanda G. Voth, assistant district attorney, argued the cause, and Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Steve Six, attorney general, were on the brief for appellant.

Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for the appellee.

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


Deanna Gilley was convicted of three counts for forgery. Relying on two prior forgery convictions, the district court sentenced her for a third forgery conviction under the progressive sentencing scheme set forth in K.S.A. 21-3710(b)(4), which requires 45 days' imprisonment as a condition of probation and a fine that is the lesser of the amount of the forged instrument or $2,500. The defendant successfully objected to a criminal history being category E. The court modified her criminal history to category G based upon the provisions of K.S.A. 21-4710(d)(11), stating that "[p]rior convictions of any crime shall not be counted . . . if they enhance the . . . applicable penalties." The Court of Appeals vacated her sentence and remanded the case for imposition of sentence with a criminal history of E. We granted defendant's petition for review, reverse the decision of the Court of Appeals, and affirm the judgment of the district court.

FACTS

Upon complaint filed in Reno County in case No. 07 CR 297, Gilley was charged with three counts of forgery under the provisions of K.S.A. 21-3710(a)(1). Pursuant to a plea agreement and on June 28, 2007, defendant entered a plea of no contest to Counts 1, 2, and 3. There is no mention in the charging document of K.S.A. 21-3710(b), which sets forth the progressive sentencing scheme for a first forgery conviction, a second forgery conviction, and a third or subsequent forgery conviction. The record establishes that defendant did not object to the charges in the complaint. Nor has the defendant raised any

223 P.3d 776

concern with the charging document, and we therefore do not address any issue dealing with the complaint filed.

It is apparent from the record that the State, the defendant, and the district court treated each of the three counts in the complaint as a third forgery conviction, requiring the defendant "to serve at least 45 days' imprisonment as a condition of probation, and a fine the lesser of the amount of the forged instrument or $2,500." K.S.A. 21-3710(b)(4). The presentence investigation report reflects this fact, as well as the journal entry of sentence for the three counts of forgery. In addition, the transcript of the sentencing hearing specifies that each count was considered as a third forgery conviction. The sentence for each count was imposed to run concurrently.

The defendant had three prior forgery convictions in case No. 06 CR 678 on December 1, 2006. Based upon her current forgery convictions and her three prior felony forgery convictions, the presentence investigation report identified her criminal history as category E based upon counting four nonperson felony forgery convictions. The defendant objected, claiming that two of her 2006 forgery convictions were used to elevate Count 1 in her present case to a third forgery conviction under K.S.A. 21-3710(b)(4). Thus, according to her argument, these two prior forgery convictions could not be counted in her criminal history under K.S.A. 21-4710(d)(11) because the two prior convictions served to enhance the penalty under Count 1 by requiring a mandatory 45 days in jail as a condition of her probation.

The district court agreed and modified her criminal history from category E (three or more nonperson felonies) to category G (one nonperson felony). The trial court rejected the State's argument that the mandatory 45 days in jail as a condition of probation did not enhance the penalty under Count 1 and also rejected the argument that her present three forgery convictions could serve as a justification for treating her convictions in the present case as third or subsequent convictions.

On the State's appeal, the Court of Appeals determined that Gilley's three forgery convictions were sufficient to warrant the district court sentencing her as a person with a third forgery conviction, thereby making all three of her prior forgery convictions in case No. 06 CR 678 available for use in computing her criminal history:

"Here, a third conviction existed at the time Gilley was sentenced in No. 07CR297 simply due to the three counts of forgery contained therein, to which Gilley pled guilty. The district court, by virtue of those three convictions, was required to sentence Gilley to the 45-day imprisonment term as a condition of her probation. Gilley's criminal history at the time of sentencing on No. 07CR297 should have included the three prior forgeries because none of those convictions were used to impose the mandatory jail term." Gilley, slip op. at 4.

Thus, the Court of Appeals vacated her sentence and remanded the case with directions that defendant be resentenced with a criminal history of E (three or more nonperson felonies). Gilley, slip op. at 4-5. Because the Court of Appeals reversed on this issue, it found it unnecessary to consider the State's argument that the 45-day term of imprisonment as a condition of Gilley's probation did not constitute an enhancement of the penalty under K.S.A. 21-4710(d)(11). Gilley, slip op. at 5.

We granted Gilley's petition for review wherein she claims that the trial court properly determined her criminal history was category G. Her claim incorporates three questions: (1) Did Gilley's three current forgery convictions in case No. 07 CR 297 provide a basis for treating her forgery conviction in Count 1 as a third conviction; (2) did the use of a conviction for both the purposes of the progressive sentencing scheme under K.S.A. 21-3710(b) and the calculation of a defendant's criminal history violate K.S.A. 21-4710(d)(11); and (3) did the trial court err in setting defendant's criminal history as category G? Gilley's case was heard concurrently with State v. Arnett, (No. 99,508, this day decided), because both cases raise the same questions for our review.

223 P.3d 777

(1) DID DEFENDANT'S THREE CURRENT FORGERY CONVICTIONS IN CASE NO. 07 CR 297 PROVIDE A BASIS FOR TREATING HER FORGERY CONVICTION IN COUNT 1 AS A THIRD CONVICTION?

The defendant was charged with three counts of forgery under K.S.A. 21-3710(a). As noted above, there was no indication in the complaint whether the three counts were charged as third offenses under the progressive sentencing scheme set forth in K.S.A. 21-3710(b)(4). However, we are able to determine from the record as...

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5 practice notes
  • State v. Pearce, 110,435.
    • United States
    • Court of Appeals of Kansas
    • 23 Enero 2015
    ...used to increase mandatory-minimum sentence could not be counted to score criminal history); State v. Gilley, 290 Kan. 31, 38–39, 223 P.3d 774 (2010) (same); State v. Luttig, 40 Kan.App.2d 1095, 1098–99, 199 P.3d 793 (2009) (same); Taylor, 27 Kan.App.2d at 64–65, 998 P.2d 123. Our opinion i......
  • State v. Pearce, No. 110,435.
    • United States
    • Court of Appeals of Kansas
    • 23 Enero 2015
    ...used to increase mandatory-minimum sentence could not be counted to score criminal history); State v. Gilley, 290 Kan. 31, 38–39, 223 P.3d 774 (2010) (same); State v. Luttig, 40 Kan.App.2d 1095, 1098–99, 199 P.3d 793 (2009) (same); Taylor, 27 Kan.App.2d at 64–65, 998 P.2d 123. Our opinion i......
  • State v. Arnett, No. 99,508.
    • United States
    • United States State Supreme Court of Kansas
    • 22 Enero 2010
    ...court err in setting defendant's criminal history as category F? Arnett's case was heard concurrently with State v. Gilley, ___ Kan. ___, 223 P.3d 774, 2010 WL 204099 (No. 99,156, this day decided), because both cases raise the same questions for our (1) DID DEFENDANT'S THREE CURRENT FORGER......
  • State v. Williams, No. 104,909.
    • United States
    • Court of Appeals of Kansas
    • 2 Marzo 2012
    ...score. See State v. Arnett, 290 Kan. 41, 50, 223 P.3d 780 (2010) (citing K.S.A. 21–4710[d][11] ); State v. Gilley, 290 Kan. 31, 39–40, 223 P.3d 774 (2010) (same). These precedents strongly suggest that only three of Williams' past convictions were “used up” to enhance his sentence and that ......
  • Request a trial to view additional results
5 cases
  • State v. Pearce, 110,435.
    • United States
    • Court of Appeals of Kansas
    • 23 Enero 2015
    ...used to increase mandatory-minimum sentence could not be counted to score criminal history); State v. Gilley, 290 Kan. 31, 38–39, 223 P.3d 774 (2010) (same); State v. Luttig, 40 Kan.App.2d 1095, 1098–99, 199 P.3d 793 (2009) (same); Taylor, 27 Kan.App.2d at 64–65, 998 P.2d 123. Our opinion i......
  • State v. Pearce, No. 110,435.
    • United States
    • Court of Appeals of Kansas
    • 23 Enero 2015
    ...used to increase mandatory-minimum sentence could not be counted to score criminal history); State v. Gilley, 290 Kan. 31, 38–39, 223 P.3d 774 (2010) (same); State v. Luttig, 40 Kan.App.2d 1095, 1098–99, 199 P.3d 793 (2009) (same); Taylor, 27 Kan.App.2d at 64–65, 998 P.2d 123. Our opinion i......
  • State v. Arnett, No. 99,508.
    • United States
    • United States State Supreme Court of Kansas
    • 22 Enero 2010
    ...court err in setting defendant's criminal history as category F? Arnett's case was heard concurrently with State v. Gilley, ___ Kan. ___, 223 P.3d 774, 2010 WL 204099 (No. 99,156, this day decided), because both cases raise the same questions for our (1) DID DEFENDANT'S THREE CURRENT FORGER......
  • State v. Williams, No. 104,909.
    • United States
    • Court of Appeals of Kansas
    • 2 Marzo 2012
    ...score. See State v. Arnett, 290 Kan. 41, 50, 223 P.3d 780 (2010) (citing K.S.A. 21–4710[d][11] ); State v. Gilley, 290 Kan. 31, 39–40, 223 P.3d 774 (2010) (same). These precedents strongly suggest that only three of Williams' past convictions were “used up” to enhance his sentence and that ......
  • Request a trial to view additional results

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