State v. Hicks

• Decision Date: 03 April 2020
• Docket Number: Nos. 120,834 , 120,836, 120,835 ,s. 120,834
• Citation: State v. Hicks, 460 P.3d 393(Table) (Kan. App. 2020)
• Parties: STATE of Kansas, Appellee, v. Jacob A. HICKS, Appellant.
• Court: Kansas Court of Appeals

460 P.3d 393 (Table)

STATE of Kansas, Appellee,

v.Jacob A. HICKS, Appellant.

Nos. 120,834

120,835

120,836

Court of Appeals of Kansas.

Opinion filed April 3, 2020.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

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

Before Bruns, P.J., Malone and Gardner, JJ.

MEMORANDUM OPINION

Per Curiam:

In these three consolidated cases, Jacob A. Hicks seeks to vacate his sentences and to reverse the district court's decision to impose his full sentences following the revocation of his probation. For the reasons set forth in this opinion, we find Hicks' arguments to be unpersuasive. Thus, we affirm his sentences in each of the three cases as well as the district court's decision not to modify his underlying sentences after his probation was revoked.

FACTS

Hicks pled guilty—and was convicted—of all counts charged in the criminal complaints filed in each of the criminal cases consolidated in this appeal. Specifically, he entered the following guilty pleas:

• In 16 CR 2979, Hicks pled guilty to one count of vehicle burglary (a level 9 nonperson felony) and one count of misdemeanor theft;

• In 16 CR 3187, Hicks pled guilty to one count of vehicle burglary (a level 9 nonperson felony), one count of misdemeanor theft, and three counts of misdemeanor criminal use of a financial card; and

• In 17 CR 1639, Hicks pled guilty to seven counts of making a false information (level 8 nonperson felonies).

Before sentencing, presentence investigation reports (PSIs) were prepared in each of the three cases showing Hicks' criminal history score to be E. The PSIs showed a prior 2004 Kansas conviction for burglary of a dwelling in violation of K.S.A. 21-3715, which was scored as a nonperson felony. However, at the sentencing hearing, the district court and the parties agreed that Hicks' prior 2004 conviction for burglary of a dwelling should have been scored as a person felony. Making that amendment, the district court found Hicks' criminal history to be C and sentenced him on that basis.

In sentencing Hicks, the district court followed the plea agreements and imposed consecutive aggravated gridbox sentences based on a criminal history score of C for each felony offense. The sentences in the three cases were also run consecutively. The district court imposed sentences of 13 months in 16 CR 2979, 13 months in 16 CR 3187, and 38 months in 17 CR 1639, for a total of 64 months' imprisonment. The district court also granted Hicks' motion for a dispositional departure to avoid a special rule in 16 CR 2979 and 16 CR 3187. Then, the district court suspended the sentences and placed Hicks on probation for a period of 18 months.

On December 11, 2017, Hicks admitted to violating his probation by submitting a urine sample that tested positive for alcohol consumption and a two-day sanction was imposed by his intensive supervision officer. The next month, Hicks admitted to violating the terms of his probation by submitting a diluted urine sample, failing to attend drug/alcohol treatment, failing to submit to a urinalysis test as directed, possessing casino cards, and having a bag—apparently containing urine—taped to himself. As a result, the district court imposed a 120-day sanction with the Kansas Department of Corrections and extended his probation for 18 months.

On September 21, 2018, the State asserted 13 additional probation violations against Hicks: (1) failing to report; (2) violating curfew; (3) being absent from drug and alcohol treatment for a period of three weeks; (4) using methamphetamine; (5) being within the presence of illegal substances; (6) losing his job after working for a day and a half and then failing to show up; (7) providing a fraudulent paycheck to his probation officer; (8) failing to notify his probation officer of a change in employment status; (9) lying to his probation officer about being employed; (10) committing new computer crimes; (11) committing the crime of forgery; (12) leaving the state of Kansas without permission; and (13) showing up for an office visit but then leaving the building before he was seen by his probation officer. At his revocation hearing, Hicks stipulated to the alleged technical violations and did not contest the State's evidence that he had committed new offenses.

The State recommended that Hicks' probation be revoked and the underlying sentences imposed. In response, Hicks asked the district court to impose a jail sanction and then extend his probation with inpatient substance abuse treatment. In personally addressing the district court, Hicks admitted that his struggles with drug abuse had prevented him from complying with the terms of his probation. He asked for an opportunity to complete inpatient treatment and stressed his willingness to wait in the jail until an inpatient bed became available.

After considering the arguments presented, the district court expressed concern for Hicks' pattern of deceit and his commission of new crimes. The district court also noted that Hicks already had the opportunity of a 2-day sanction and a 120-day sanction but continued to violate the terms of his probation. Given this history, the district court revoked Hicks' probation, denied his request for a modification of his sentence, and imposed the full underlying sentence. The district court later allowed Hicks to file a late notice of appeal in each case, and this court consolidated the cases on appeal.

ANALYSIS

Criminal History Score

On appeal, Hicks first contends that his criminal history score should have been E rather than C when he was initially sentenced. Hicks argues that under State v. Keel , 302 Kan. 560, 590, 357 P.3d 251 (2015), the district court had to classify his prior burglary as a nonperson felony because at the time that he committed his current offenses—in 2016 and 2017—burglary was a nonperson felony. In response, the State points to K.S.A. 2016 Supp. 21-6811(d)(1), in which the Kansas Legislature specifically provided that prior adult burglary convictions would continue to be classified as a person felony if the conviction was classified as a burglary under K.S.A. 21-3715(a) prior to its repeal.

Whether a district court has properly classified a prior conviction as a person or nonperson offense involves the interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2019 Supp. 21-6801 et seq. Under K.S.A. 2019 Supp. 22-3504(a), courts may correct an illegal sentence at any time while the defendant is serving the sentence. Whether a sentence is illegal is a question of law subject to unlimited review. Similarly, issues of statutory interpretation and the classification of prior crimes for criminal history purposes are also questions of law subject to unlimited review. State v. Sartin , 310 Kan. 367, 369, 446 P.3d 1068 (2019).

A defendant's criminal history includes an offender's criminal record of adult felony convictions, juvenile adjudications, and misdemeanors as provided in K.S.A. 2019 Supp. 21-6810. When calculating a defendant's criminal history score, a district court lists the defendant's prior convictions and classifies each conviction as a felony or a misdemeanor conviction and as a person or nonperson offense. K.S.A. 2019 Supp. 21-6810. For post-KSGA convictions in Kansas, person and nonperson offense classifications are included in the Kansas criminal statutes. Keel , 302 Kan. at 574-75.

When a district court improperly classifies a prior conviction for purpose of determining a defendant's criminal history score, an illegal sentence results. State v. Dickey , 301 Kan. 1018, 1034, 350 P.3d 1054 (2015) (Dickey I ). Even if a party agrees to an incorrect criminal history score, this court may correct the resulting illegal sentence at any time. State v. Lehman , 308 Kan. 1089, 1093, 427 P.3d 840 (2018). A criminal defendant cannot stipulate to an illegal sentence. State v. Hankins , 304 Kan. 226, Syl. ¶ 3, 372 P.3d 1124 (2016). Under K.S.A. 2019 Supp. 22-3504(a), an illegal sentence may be corrected at any time while a defendant is serving that sentence. This includes challenging a criminal history score for the first time on appeal following the revocation of a defendant's probation. State v. Dickey , 305 Kan. 217, 219, 380 P.3d 230 (2016) (Dickey II ). Further, K.S.A. 2019 Supp. 21-6820(e)(3) provides that an appellate court may review any claim that "the sentencing court erred ... in determining the appropriate classification of a prior conviction ... for criminal history purposes."

At the time of Hick's sentencing, the parties agreed that his 2004 conviction for burglary of a dwelling should be classified as a person felony. Based on that agreement, the district court amended Hicks' criminal history score from E to C. A review of the record confirms that Hicks was convicted of burglary of a dwelling in 2004 in violation of K.S.A. 21-3715(a), which was a person felony. Subsequently, K.S.A. 21-3715(a) was repealed and recodified in K.S.A. 2011 Supp. 21-5807(a)(1).

Since the Legislature added the person and nonperson designations to criminal offenses in 2003, burglary of a dwelling has almost always been classified as a person offense. However, we recognize that for a short time spanning less than a year—from July 1, 2016, until May 18, 2017—our Legislature classified residential burglary as a nonperson crime. Compare K.S.A. 2016 Supp. 21-5807(c)(1)(A)(i) with K.S.A. 2017 Supp. 21-5807(c)(1)(A)(i). Even so, during that time period, K.S.A. 2016 Supp. 21-6811(d)(1) directed courts to classify prior convictions for burglary of a dwelling as person felonies.

Under K.S.A. 2016 Supp. 21-6811(d)(1), our Legislature specifically provided:

"Prior burglary adult convictions and juvenile adjudications will be scored for criminal history purposes as follows:

"(1) As a prior person felony if the prior conviction or adjudication was classified as a burglary as

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