State v. Howell, 124,650

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM
PartiesState of Kansas, Appellee, v. Andrew Michael Howell, Appellant.
Docket Number124,650
Decision Date02 September 2022

State of Kansas, Appellee,
v.

Andrew Michael Howell, Appellant.

No. 124,650

Court of Appeals of Kansas

September 2, 2022


NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge.

James M. Latta, 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 ARNOLD-BURGER, C.J., SCHROEDER and WARNER, JJ.

MEMORANDUM OPINION

PER CURIAM

Andrew Howell appeals his sentence, claiming the district court erroneously included a juvenile adjudication for reckless criminal threat in its calculation of his criminal-history score. After reviewing the record and the parties' arguments, we agree that Howell's criminal-threat adjudication should not have been considered as part of his criminal history at sentencing. We therefore vacate Howell's sentence and remand the case for resentencing.

1

FACTUAL AND PROCEDURAL BACKGROUND

Howell pleaded no contest to one count each of criminal possession of a weapon and fleeing or attempting to elude an officer, charges arising from an incident in October 2020. After the district court accepted Howell's plea, the State prepared a presentence investigation report to aggregate Howell's criminal history and calculate his presumptive sentence. The summary of Howell's criminal history in that report included a 2019 juvenile adjudication for criminal threat-his only person felony. Based in part on this adjudication, the report calculated Howell's criminal-history score as C.

Howell's criminal-threat adjudication resulted from a no-contest plea to "unlawfully threaten[ing] to commit violence, communicated with the intent to place another . . . in fear or in reckless disregard of the risk of causing such fear." A few months after Howell served his sentence for that offense, the Kansas Supreme Court decided State v. Boettger, 310 Kan. 800, 450 P.3d 805 (2019), cert denied, 140 S.Ct. 1956 (2020). That case found the offense of reckless criminal threat under K.S.A. 2018 Supp. 21-5415(a)(1) to be unconstitutional. 310 Kan. 800, Syl. ¶ 3.

Relying on Boettger, Howell challenged the report's inclusion of his previous criminal-threat adjudication when calculating his criminal-history score for his sentence in this case. In response, the State submitted the complaint from Howell's juvenile adjudication in an effort to show that Howell's criminal-threat offense had been intentional, not reckless, and therefore should be considered part of his criminal history. The district court denied Howell's challenge, finding the complaint showed Howell had pleaded no contest to committing both intentional and reckless criminal threat. Thus, the court found that Howell's previous adjudication should be included in his criminal-history score. The court then followed the plea agreement, imposing an underlying 22-month prison sentence and granting Howell 18 months' probation. Howell appeals.

2

DISCUSSION

Howell argues that the district court erred in using his criminal-threat adjudication to calculate his criminal-history score. He asserts that the State failed to prove he was convicted of the intentional version of that offense-the only crime that may be considered after Boettger-so the district court could not use the adjudication to calculate his criminal-history score. We agree.

As a preliminary matter, we note that appellate courts typically lack jurisdiction to review a sentence that is within the presumptive range under the Kansas Sentencing Guidelines or results from a plea agreement. K.S.A. 2021 Supp. 21-6820(c)(1)-(2). Howell's sentence falls into both categories. But an appellate court may consider a claim that "the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes." K.S.A. 2021 Supp. 21-6820(e)(2). A court can also correct an illegal sentence at any time. K.S.A. 2021 Supp. 22-3504(a). We thus have jurisdiction over Howell's appeal, which raises an issue over which our review is unlimited. See State v. Roberts, 314 Kan. 316, 319-20, 498 P.3d 725 (2021).

Under Kansas law, a person's sentence generally results from a combination of the severity of the crime and his or her criminal history. See K.S.A. 2021 Supp. 21-6804(a); K.S.A. 2021 Supp. 21-6805(a). The State has the burden to prove a person's criminal history by a preponderance of the evidence. State v. Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019). When calculating someone's criminal-history score, the district court may not use a previous juvenile adjudication under a statute that an appellate court has since declared unconstitutional. K.S.A. 2021 Supp. 21-6810(d)(9). The question we must consider is whether the State presented sufficient evidence at sentencing to show that Howell had been adjudicated for making an intentional criminal threat.

3

See State v. Martinez-Guerrero, No. 123,447, 2022 WL 68543, at *3 (Kan. App. 2022) (unpublished opinion).

The only evidence offered by the State regarding Howell's criminal-threat adjudication was the complaint charging him with the crime. That complaint shows that Howell pleaded no contest to "unlawfully threaten[ing] to commit violence, communicated with the intent to place...

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