State v. Herrman

Decision Date25 February 2022
Docket Number122,884
PartiesState of Kansas, Appellee, v. Lance Joseph Herrman, Appellant.
CourtKansas Court of Appeals


Appeal from Ellis District Court; Blake A. Bittel, judge.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt attorney general, for appellee.

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



The question presented in this appeal is whether Lance Joseph Herrman's criminal threat conviction was properly included in his criminal history score when he was sentenced for a drug crime. Given this record on appeal, we cannot answer that question definitively. Therefore, we vacate Herrman's sentence and remand this case for resentencing so the district court can decide whether Herrman's criminal threat conviction can be validly included in his criminal history score.

In March 2020, Herrman pled guilty to possession of methamphetamine. In the presentence investigation report used for sentencing, Herrman's 2015 criminal threat conviction was listed as violating K.S.A. 21-5415. The criminal threat violation was Herrman's only person felony conviction and its inclusion brought his criminal history score to C. At sentencing, Herrman did not object to his criminal history score. Based on this criminal history score, the trial court sentenced Herrman to 30 months in prison. Herrman filed a timely notice of appeal on the theory that the State had not proved his criminal history by a preponderance of the evidence.

The Supreme Court strikes down a portion of the criminal threat statute.

When Herrman was convicted of making a criminal threat in 2015 there were two ways to commit the crime: intentionally or recklessly. A few months before Herrman's drug conviction here, the Kansas Supreme Court held in State v Boettger, 310 Kan. 800, 801, 450 P.3d 805 (2019) cert. denied 140 S.Ct. 1956 (2020), that the "reckless disregard" portion of K.S.A. 2018 Supp. 21-5415 is unconstitutionally overbroad. Thus, convictions for recklessly making criminal threats are void since that portion of the statute violates the United States Constitution.

This means that if Herrman's criminal threat conviction was for recklessly making a criminal threat, it cannot be used in computing his criminal history score in this case. If his conviction was for making an intentional criminal threat, then it can properly be used to compute his criminal history score.

The law is well settled on what prior convictions may be validly used to decide an offender's criminal history score. When a criminal history score is made by including a crime defined by an unconstitutional statute, the resulting sentence is illegal. See K.S.A. 2020 Supp. 21-6810(d)(9). Here, Herrman's PSI report did not reveal if the criminal threat violation listed in his criminal history stemmed from the unconstitutional reckless disregard version of the crime. When a defendant's criminal history has not been proved by a preponderance of the evidence, it is proper to remand the case to give the State the opportunity to meet its burden of proof. See State v. Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019). Usually, when a defendant does not object to the criminal history portion of the PSI report, that history is accepted as being proved by the necessary standard. See K.S.A. 2020 Supp. 21-6814. But more is required when the PSI report does not specify what version of the criminal offense was committed, even when the defendant does not object to the criminal history. Obregon, 309 Kan. at 1275. We find Obregon's ruling persuasive here. While Obregon had to deal with out-of-state convictions, we do not think in-state convictions should be treated differently when a Kansas statute has been declared unconstitutional.

The defendant in Obregon had a criminal history score derived from crimes the defendant committed in Florida. The Florida statute contained two ways to commit the offense-one of which lacked a comparable Kansas offense. Obregon's PSI report did not show which version of the Florida statute he was convicted of violating. Obregon did not object to his criminal history at sentencing. The Obregon court established that it is the State's burden to determine which version of an out-of-state crime the defendant committed "to establish that the defendant committed a version of the offense supporting the person classification," regardless of an objection by the defendant. 309 Kan. at 1275.

We are not the first to rule in this way. Other panels of this court have remanded several cases based on the same issue that Herrman raises here. See State v. Herrera, No. 122, 767, 2021 WL 4693103, at *2 (Kan. App. 2021) (unpublished opinion); State v. Grant-Adams, No. 121, 833, 2021 WL 2603344, at *12 (Kan. App. 2021) (unpublished opinion); State v. Anderson, No. 121, 640, 2020 WL 6371059, at *4-5 (Kan. App. 2020) (unpublished opinion); State v. McKoy, No. 121, 636, 2020 WL 5739730, at *3 (Kan. App. 2020) (unpublished opinion); State v. Arnold, No. 121, 542, 2020 WL 5740900, at *2 (Kan. App. 2020) (unpublished opinion). In all of these cases, the defendants asked for a remand of their sentences based on an ambiguous criminal threat charge used to determine his criminal history score.

Further, these cases held that "there needed to be proof of whether the defendant was convicted of intentional, not reckless, criminal threat" for the criminal threat charge to be properly included in a criminal history. State v. Beltran, No. 121, 200, 2020 WL 7409937, at *3 (Kan. App. 2020) (unpublished opinion). We have the same situation here.

Similar facts should yield similar legal rulings. Because the PSI report here is ambiguous, the State has not met its burden to prove Herrman's criminal history score.

The State argues that since K.S.A. 2018 Supp. 21-5415 became unconstitutional before he was sentenced, Herrman should have objected to his criminal history score when he was sentenced, and he cannot do so now. By arguing this way, the State is inviting us to ignore K.S.A. 2020 Supp. 21-6810(d)(9), that directs, "[p]rior convictions of a crime defined by a statute that has since been determined unconstitutional by an appellate court shall not be used for criminal history scoring purposes." We choose to decline the invitation. The Legislature has made it clear, such convictions are not to be included in a criminal history score.

Also, it appears that the factual premise of the State's argument is incorrect. Although the court's opinion in Boettger was released on October 25, 2019, the mandate did not issue until June 23, 2020, after the United States Supreme Court denied the State's request for review. The Kansas Supreme Court was required to stay the mandate while the State sought review by the United States Supreme Court. See K.S.A. 2020 Supp. 22-3605(b). The Boettger decision did not become final and, thus, was not binding authority until the mandate was issued. See State v. McAlister, 310 Kan. 86, 87, 444 P.3d 923 (2019); State v. Holt, 298 Kan. 469, 475-76, 313 P.3d 826 (2013). The district court sentenced Herrman on April 8, 2020. At that point, Herrman had no conclusive argument against the inclusion of his earlier conviction for criminal threat in his criminal history precisely because the Boettger ruling was not final. This chronology makes Herrman's case one of a very small number of cases.

The timing of the Boettger ruling is important. Our research reveals that this court has denied granting remand on the criminal threat argument only when the sentencing took place and any direct appeal had been concluded before Boettger was decided. See State v. Louis, 59 Kan.App.2d 14, 27, 476 P.3d 837 (2020). This is not the situation here. This court did not question the timing in Herrera that looked much like the case here, see 2021 WL 4693103, nor did this court have any problems with timing in the other several criminal threat cases cited above. It is the State's burden to prove criminal history for sentencing.

We think this case differs from State v. Roberts, 314 Kan. 316, 498 P.3d 725 (2021). In Roberts, the defendant argued his sentence was illegal because the State had not proven he had properly waived his right to counsel in all the misdemeanor convictions used to determine his criminal history score. The presumption of validity forced the court to reject Roberts' claims. See 314 Kan. 316, Syl. ¶¶ 5-6. The court refused to impose an onerous burden upon the State of proving whether the misdemeanor convictions were uncounseled.

In Roberts, there was no question of what prior crimes Roberts was convicted of. Here, there is a real question of which type of criminal threat Herrman made. This distinction is important. Roberts admitted his criminal history was correct. Here, the court asked Herrman, "Do you have any objection to the criminal history or any other part of that presentence investigation report that you reviewed?" Herrman said, "No." Herrman did not admit his criminal history-he merely failed to object to his criminal history- just as Obregon did. Therefore, we find Obregon persuasive. We impose no onerous burden on the State here. Simply put, the question is, was Herrman's criminal threat made intentionally or recklessly? A new presentence investigation report can answer that question.

The sentencing court used a PSI report that links Herrman's criminal history score with a statute deemed partially unconstitutional. Because a criminal history score was made based on an unconstitutional statute that is illegal, it becomes critical to determine what part of that statute Herrman's criminal threat charge is tied to. See K.S.A 2020 Supp....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT