State v. Hasbrouck

• Decision Date: 04 March 2022
• Docket Number: 123,778
• Parties: STATE of Kansas, Appellee, v. Matthew D. HASBROUCK, Appellant.
• Court: Kansas Court of Appeals

62 Kan.App.2d 50

506 P.3d 924

STATE of Kansas, Appellee,

v.Matthew D. HASBROUCK, Appellant.

No. 123,778

Court of Appeals of Kansas.

Opinion filed March 4, 2022

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Gardner, P.J., Hill and Isherwood, JJ.

Hill, J.:

This appeal raises two questions about an offender's criminal history score: whether an out-of-state conviction is a person crime and whether some misdemeanor convictions should have been included in the criminal history as well. Our research reveals that the Legislature has answered the first question and the Supreme Court has answered the second. These authorities compel us to affirm the sentencing court.

Matthew D. Hasbrouck pleaded guilty to possession of methamphetamine. His crime was committed in August 2019. When he pled, both he and his attorney thought his criminal history score would be E. It turns out they were wrong. When the district court sentenced Hasbrouck, it set his score at A—the highest score possible.

Hasbrouck's record revealed several convictions. He had two felony convictions in Missouri in 2014—one for second-degree robbery and one for first-degree burglary. His record also revealed he had two person misdemeanor convictions for domestic violence and one person misdemeanor conviction for violation of a protective order in Johnson County, Kansas. According to the law, these three were aggregated to equal one person felony conviction.

This meant that Hasbrouck had three felony convictions for person crimes in his record which led to a criminal history score of A.

At sentencing Hasbrouck neither objected to his criminal history score nor to the aggregation of his three person misdemeanor convictions that aggregated them into one person felony conviction. With no further argument, the court passed sentence on Hasbrouck and sent him to prison for 40 months.

Hasbrouck makes two arguments to us. First, the sentencing court should not have considered the Missouri burglary conviction as a person crime. Second, the court should not have included his Johnson County misdemeanor convictions since the State did not prove that he was represented by counsel in those three cases or that he had waived his right to counsel in those prosecutions. We will take up those issues in that order.

Judge-made rules have been replaced by statute.

Under the old rules, sentencing courts had to compare out-of-state crimes with Kansas crimes. Over the years, several cases dealt with the subject and concluded with a succinct test for the court to use. In 2018 the Kansas Supreme Court defined the term "comparable offense" in State v. Wetrich , 307 Kan. 552, 561-62, 412 P.3d 984 (2018). The Wetrich court said that courts must compare the elements of the out-of-state crime to the elements of the Kansas crime. If the out-of-state crime's elements were not identical to or narrower than the Kansas crime, it had to be classified as a nonperson offense. We must note that comparable Kansas offenses are still used in designating an out-of-state misdemeanor as a person or nonperson crime. See K.S.A. 2019 Supp. 21-6811(e)(3)(A).

Effective May 23, 2019, the Kansas Legislature amended K.S.A. 21-6811 to replace the "comparable offense" test with a simpler test when a court is deciding if an out-of-state felony is a person or nonperson crime. With the enactment of K.S.A. 2019 Supp 21-6811(e)(3)(B), the Legislature replaced all of the prior judge-made rules concerning how out-of-state criminal convictions are to be treated when a sentencing court is setting the offender's criminal history score. The revision removed the term "comparable offense" from the law. Before its enactment, courts looked to see if there was a Kansas crime comparable to the out-of-state crime when deciding whether the out-of-state conviction was a person or nonperson crime.

But this amendment has changed those rules. When the Legislature amends a statute, Kansas courts presume that it intended to change the law that existed prior to the amendment. See State v. Mishmash , 295 Kan. 1140, 1144, 290 P.3d 243 (2012).

Before 2019, Kansas courts determined whether prior out-of-state convictions were person or nonperson offenses by comparing the out-of-state statutes to the "comparable offense" in effect in Kansas on the date the current crime was committed. If there was a comparable crime, the sentencing court had to classify the prior conviction as a person crime; if not, it was a nonperson crime. K.S.A. 2018 Supp. 21-6811(e)(3) ; State v. Baker , 58 Kan. App. 2d 735, 738-39, 475 P.3d 24 (2020). But all of that changed in 2019.

Now, sentencing courts are no longer to compare out-of-state jurisdiction crimes with Kansas crimes and reach their conclusion by the use of analogy. Instead of comparing crimes, sentencing courts are to simply examine the elements of the out-of-state statutes to see if they are written to help protect innocent people. The statute exempts a charged accomplice or another person with whom the defendant is engaged in the sale of a controlled substance or a noncontrolled substance. If the out-of-state statute contains any of the elements listed as "circumstances" in the Kansas statute, they are person crimes. If they contain no such elements, they are nonperson crimes.

A close examination of the statute illustrates our point.

Our sentencing guidelines are found in Article 68 of the Criminal Code. K.S.A. 2019 Supp. 21-6811 explains how an offender's criminal history classification must be determined when using the presumptive sentencing guidelines grid. This is important because our sentencing grid depends on two components: the severity level of the crime committed and the criminal history of the offender. The more severe crimes lead to longer sentences. Person crimes receive longer sentences than nonperson crimes. The greater criminal history of an offender leads to more severe sentences. Each offender before sentencing will receive a presentence investigation report that reveals that offender's crime and criminal history expressed as a score from E—the lowest—to A—the highest.

When we turn to subsection (e)(1) of the statute, it directs that out-of-state convictions must be used in classifying an offender's criminal history. Then, subsection (e)(2) says that classification of a crime as a felony or misdemeanor is made by the convicting jurisdiction. So, in Hasbrouck's case, since burglary in the first degree is a felony in Missouri, then it will be considered a felony for criminal history scoring in Kansas.

Then, moving on to subsection (e)(3), the law commands that the State of Kansas will classify the out-of-state crime as a person or nonperson crime. In other words, Kansas judges will determine this classification when imposing Kansas sentences.

Next, the statute then explains what the sentencing court is to look for when making this person/nonperson classification. The revised statute describes two ways an out-of-state crime can be classified as a person crime. Those two ways are found in subsection K.S.A. 2019 Supp. 21-6811(e)(3)(B)(i) and (e)(3)(B)(ii) of the statute. There is only one way for a crime to be classified as a nonperson crime. That is found in subsection (e)(3)(B)(iii) of the statute. We will look first at the two ways a crime may be found to be a person crime.

Basically, the statute in subsection (e)(3)(B)(i) directs that this classification of a person crime is determined by looking at the elements of the out-of-state offense. The statute then lists eight "circumstances" that if any are found in the elements of the out-of-state crime, then the crime will be classified as a person crime in Kansas when a court establishes a criminal history score. The eight circumstances are found in (e)(3)(B)(i)(a)-(h). All eight circumstances depict dangerous situations in which innocent people may be harmed. Again, we note that the statute exempts a charged accomplice or another person with whom the defendant is engaged in the sale of a controlled substance or a noncontrolled substance.

Then, subsection (e)(3)(B)(ii) directs that an out-of-state conviction is a person crime if the elements of that felony necessarily prove that a person was present during the commission of the crime. So even if the crime does not require proof of any of the eight circumstances listed above, if the elements require the prosecution to prove that another person was present when the crime was committed, then it is classified as a person crime.

Finally, subsection (e)(3)(B)(iii) states that if the elements of the offense do not require proof of any of the circumstances listed in (B)(i) or (ii), then it must be classified as a nonperson crime. In other words, if there are none of the circumstances in the elements of the crime, or if the prosecution does not have to prove that another person was present when the crime was committed, then it is a nonperson crime for criminal history scoring in Kansas.

We set out the specific portions of the statute that are important for this case. We begin first with four of the eight statutory circumstances listed in the law:

"(B) In designating a felony crime as person or nonperson, the felony crime shall be classified as follows:

(i) An out-of-state conviction or adjudication for the commission of a felony offense ... shall be classified as a person felony if one or more of the following circumstances is present as defined by the convicting jurisdiction in the elements of the out-of-state offense:

....

(b) threatening or causing fear of bodily or physical harm or violence, causing terror, physically intimidating or harassing any person;

....

(d) the presence of a person, other than the defendant, a charged accomplice or another person with whom the defendant is engaged in the sale, distribution or transfer of a controlled

...