State v. Horselooking

Decision Date30 June 2017
Docket NumberNo. 115,656,115,656
Citation54 Kan.App.2d 343,400 P.3d 189
Parties STATE of Kansas, Appellee, v. Alvin P. HORSELOOKING, Jr., Appellant.
CourtKansas Court of Appeals

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Atcheson, P.J., Malone and Powell, JJ.

Malone, J.:

Alvin P. Horselooking, Jr., appeals his sentence following his convictions of aggravated battery and driving under the influence of alcohol (DUI). The district court assigned Horselooking a criminal history score of B based in part on his Kickapoo Nation tribal conviction of residential burglary, which the district court scored as a person felony for criminal history purposes. However, the Kickapoo Nation Tribal Code does not designate burglary as being either a felony or a misdemeanor offense. As his sole issue on appeal, Horselooking claims the district court erred when it scored his prior Kickapoo tribal conviction as a felony for criminal history purposes. Because we agree with Horselooking's claim, we vacate his sentence and remand for the district court to resentence Horselooking using the correct criminal history score.

The pertinent facts are straightforward. Horselooking pled no contest to one count of aggravated battery and one count of DUI, both of which occurred on August 19, 2015. The presentence investigation report showed a criminal history score of B based in part on a 2013 Kickapoo tribal conviction of residential burglary, scored as a person felony for criminal history purposes. Horselooking filed an objection to his criminal history score prior to sentencing, arguing that his Kickapoo tribal conviction should not be scored as a felony. Specifically, Horselooking argued that the Kickapoo Nation Tribal Code does not designate crimes as felonies or misdemeanors, and the Kansas sentencing statute does not provide a mechanism for determining whether an out-of-state conviction is a felony or a misdemeanor where the convicting jurisdiction does not differentiate between the two. Horselooking asserted that his prior Kickapoo tribal conviction should have been classified as a misdemeanor for criminal history purposes, thus changing his criminal history score from B to D.

At the sentencing hearing on December 11, 2015, Horselooking renewed his argument that his Kickapoo tribal conviction of residential burglary should be scored as a misdemeanor rather than a felony for criminal history purposes because the tribal code did not designate the offense as either a felony or a misdemeanor. Horselooking did not object to the person classification of the burglary conviction. In fact, he stipulated that the burglary involved a residence.

The State cited State v. Hernandez , 24 Kan.App.2d 285, Syl. ¶ 2, 944 P.2d 188, rev. denied 263 Kan. 888 (1997), which holds that when determining criminal history under the Kansas Sentencing Guidelines Act (KSGA), if the convicting jurisdiction does not delineate between felonies and misdemeanors, that determination is made by the sentencing court by comparing the offense to the most comparable Kansas crime. Because any method of burglary is classified as a felony in Kansas, the State argued that Horselooking's tribal conviction should be classified as a felony for criminal history purposes. The district court agreed with the State's argument and classified the Kickapoo tribal conviction as a person felony. Based on Horselooking's criminal history score of B, the district court sentenced him to 29 months' imprisonment with 12 months of postrelease supervision. Horselooking timely appealed his sentence.

On appeal, Horselooking claims the district court erred when it scored his prior Kickapoo tribal conviction of residential burglary as a felony for criminal history purposes. He renews the argument he made in district court that the tribal code does not designate crimes as felonies or misdemeanors, and the KSGA does not provide a mechanism for determining whether an out-of-state conviction is a felony or a misdemeanor where the convicting jurisdiction does not differentiate between the two. Thus, Horselooking asserts that his Kickapoo tribal conviction is either unscoreable for purposes of his criminal history or, alternatively, he argues that the tribal conviction should be scored as a misdemeanor for criminal history purposes.

The State argues that based on this court's prior decisions in Hernandez and State v. Lackey , 45 Kan.App.2d 257, 246 P.3d 998, rev. denied 292 Kan. 968 (2011), the sentencing court should look to the comparable Kansas offense to determine whether an out-of-state conviction should be scored as a felony or a misdemeanor if the convicting jurisdiction does not differentiate between the two. But the State asserts that "if this Court decides [that Hernandez and Lackey ] were wrongly decided, the State would agree with Horselooking that his crime should be scored as a misdemeanor to comply with the legislature's clear intent to have such crimes be counted in criminal history scores."

Resolution of the issue presented in this appeal requires the interpretation of the KSGA. Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Collins , 303 Kan. 472, 473–74, 362 P.3d 1098 (2015).

We begin by reviewing the applicable Kansas sentencing scheme for determining an offender's criminal history classification in effect when Horselooking committed his crimes on August 19, 2015. First, we note that convictions occurring in a tribal court are considered out-of-state convictions. K.S.A. 2015 Supp. 21-6811(e)(4). The classification of out-of-state convictions for criminal history purposes is controlled by K.S.A. 2015 Supp. 21-6811(e) which states in part:

"(1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offender's criminal history.
"(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction:
(A) If a crime is a felony in another state, it will be counted as a felony in Kansas.
(B) If a crime is a misdemeanor in another state, the state of Kansas shall refer to the comparable offense in order to classify the out-of-state crime as a class A, B or C misdemeanor. If the comparable misdemeanor crime in the state of Kansas is a felony, the out-of-state crime shall be classified as a class A misdemeanor. If the state of Kansas does not have a comparable crime, the out-of-state crime shall not be used in classifying the offender's criminal history."

We note that before 2015, the KSGA provided even less direction on how sentencing courts should classify out-of-state convictions as felonies or misdemeanors for criminal history purposes. Prior to the amendment that went into effect on July 1, 2015, the statute simply stated: "An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas." See K.S.A. 2014 Supp. 21-6811(e).

K.S.A. 2015 Supp. 21-6811(e)(1) mandates that out-of-state convictions and juvenile adjudications—including tribal convictions and adjudications—shall be used in classifying the offender's criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. K.S.A. 2015 Supp. 21-6811(e)(2). If the crime is a felony in the convicting jurisdiction, it will be counted as a felony in Kansas. K.S.A. 2015 Supp. 21-6811(e)(2)(A). If the crime is a misdemeanor in the convicting jurisdiction, it will be scored as a misdemeanor in Kansas, and the court shall refer to the comparable Kansas offense to determine whether it should be classified as a class A, B, or C misdemeanor. K.S.A. 2015 Supp. 21-6811(e)(2)(B).

The complicating issue here is that the Kickapoo Nation Tribal Code does not differentiate between felonies and misdemeanors. The KSGA expressly provides how a sentencing court shall classify an out-of-state conviction if the crime is a felony or a misdemeanor in the convicting jurisdiction. But there is no explicit language in the KSGA explaining how a court is to classify an out-of-state conviction as either a felony or a misdemeanor when the convicting jurisdiction does not distinguish between the two.

This court first addressed this issue in 1997 in Hernandez . In that case, the defendant's criminal history included three military convictions for drug offenses, but military convictions are not designated as felonies or misdemeanors. The defendant argued that because the sentencing statute was silent on how to classify his military convictions as felonies or misdemeanors, they had to be scored as misdemeanors. This court disagreed, noting that the fundamental rule of statutory construction is that the intent of the legislature governs where that intent can be ascertained, even though words, phrases, or clauses at some place in the statute must be omitted or inserted.

24 Kan.App.2d at 287, 944 P.2d 188. This court ultimately held:

"The legislature knows that under general principles of criminal jurisprudence, states generally divide the seriousness of crimes into two basic categories, felonies and misdemeanors. It is equally clear that the two most important factors for the court to consider in determining a sentence under the KSGA is the criminal history of the defendant and the severity of the crime committed. The specific intent of the legislature is that all prior adult felony convictions, including expungements, be considered and scored in determining a defendant's criminal history. [Citation omitted.]
"We conclude the legislature intended the sentencing court to compare a prior conviction to the most comparable Kansas offense to make a felony or misdemeanor determination when such conviction occurred in a jurisdiction that does not
...

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6 cases
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    • United States
    • Kansas Court of Appeals
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    ...the facts and the law, bearing in mind that the Kansas Supreme Court is the final arbiter of all disputes." State v. Horselooking , 54 Kan. App. 2d 343, 350, 400 P.3d 189 (2017).We decline to follow the majority decision in Mejia or the Patton panel and, instead, find the dissent in Mejia i......
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