State v. Jackson
| Decision Date | 03 June 2022 |
| Docket Number | 124,271 |
| Citation | 510 P.3d 727 (Table) |
| Parties | STATE of Kansas, Appellant, v. William Cody JACKSON Sr., Appellee. |
| Court | Kansas Court of Appeals |
Jodi Litfin, assistant solicitor general, Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
Before Hill, P.J., Malone, J., and Patrick D. McAnany, S.J.
The State appeals the district court's criminal history classification used to determine William Cody Jackson Sr.'s sentence following his guilty plea to aggravated burglary. More specifically, the State claims the district court erred in calculating Jackson's criminal history score by not including his two prior Kansas criminal threat convictions as part of his criminal history and by classifying his prior Missouri sodomy conviction as a nonperson felony. For the reasons stated in this opinion, we reject the State's claims and affirm the district court's judgment.
On September 22, 2018, Jackson committed criminal acts that the State later charged as aggravated burglary, two counts of theft, and attempted aggravated escape from custody. In February 2020, Jackson pled guilty to aggravated burglary in exchange for dismissal of the other charges. The presentence investigation (PSI) report showed that Jackson had a criminal history score of A. The PSI report counted four person felonies in Jackson's criminal history: a 2015 Kansas aggravated battery conviction, a 2017 Kansas criminal threat conviction, a 2016 Kansas criminal threat conviction, and a 2002 Missouri statutory sodomy in the first-degree conviction.
Jackson objected to his criminal score, challenging the person classification of the two criminal threat convictions and the Missouri sodomy conviction. Jackson asserted that (1) the criminal threat convictions could not be counted in his criminal history because of State v. Boettger , 310 Kan. 800, 822-23, 450 P.3d 805 (2019), cert. denied , 140 S. Ct. 1956 (2020), and (2) the sodomy conviction could not be scored as a person felony because the statutory elements of the offense were not narrower than or identical to the elements of comparable Kansas statutes as required under the test set out in State v. Wetrich , 307 Kan. 552, 562, 412 P.3d 984 (2018).
The district court held an initial hearing on Jackson's objection and requested additional briefing. The parties filed supplemental briefing, and the State included various documents for the district court to consider in deciding Jackson's criminal history score under the modified categorical approach. For Jackson's 2016 criminal threat conviction, the State included a copy of the charging document, charging Jackson with communicating a threat to commit violence "with the intent to place another in fear or in reckless disregard of the risk of causing such fear." The State also included the transcript from the plea hearing which reflected that Jackson pled no contest to the charge of criminal threat. The proffered factual statement for the charge was that Jackson kissed the victim "and told her it would be the last kiss she received from him, which caused [the victim] to be fearful for her own physical safety due to its threatening manner."
For the 2017 criminal threat conviction, the State provided the charging document which again showed that Jackson was charged with communicating a threat to commit violence "with the intent to place another in the fear or in reckless disregard of the risk of causing such fear" to two separate victims. The State also provided the plea hearing transcript which showed Jackson pled no contest to the charge of criminal threat and stated the proffered factual basis for the plea was that Jackson entered a Dollar General store and began threatening to physically harm an employee.
Finally, the State included the amended information for Jackson's Missouri conviction for sodomy, which alleged Jackson "committed the felony of statutory sodomy in the first degree" by having "deviate sexual intercourse with [the victim], who was then less than fourteen years old."
On January 8, 2021, the district court issued its ruling at the continued hearing. For the Missouri conviction, the district court found Wetrich applied, and under that analysis, the Missouri conviction must be scored as a nonperson felony. The court explained that the Missouri sodomy crime was broader than Kansas aggravated criminal sodomy because the Missouri crime could involve "the hand and genitalia." The district court then found that the Missouri crime was broader than the Kansas crime of rape because the Missouri statute "would allow the use of a hand and no penetration." The district court found that the Missouri crime was also broader than the Kansas crime of aggravated indecent liberties with a child because the Missouri statute allowed the gratification to be for any person, not only the child or the offender.
As for the Kansas criminal threat convictions, the district court found that the charging documents contained both intentional and reckless language and because Jackson simply pled to the criminal threat charge, the district court could not determine which version of the statute Jackson pled to. The district court stated it did not believe Jackson could plead to both intentional and reckless behavior at the same time, that it did not believe it could consider the plea transcripts and "act as a factfinder to weigh in on which particular portion of that statute the defendant was entering a plea to," and that even if it did consider the plea transcript it was still not evident which version Jackson pled to. Thus, the district court ruled that the Kansas criminal threat convictions could not be counted in Jackson's criminal history.
The district court ordered a new PSI report that reflected Jackson had a criminal history score of C. The amended PSI report showed that Jackson had one person felony—the 2015 Kansas aggravated battery conviction—and counted the Missouri sodomy conviction and the two Kansas criminal threat convictions as nonperson felonies.
The State moved to reconsider, asserting the district court erred in finding the Missouri crime broader than the Kansas crimes and that the State only needed to prove that Jackson "was not convicted solely of reckless criminal threat." On July 29, 2021, the district court sentenced Jackson. The district court denied the State's motion to reconsider, reiterating its prior rulings. The district court found Jackson's criminal history score to be C and imposed a sentence of 53 months' imprisonment and 24 months' postrelease supervision. The State timely appealed Jackson's sentence.
The State claims the "district court erred when it classified Jackson's two Kansas criminal threat convictions and Missouri statutory sodomy conviction as nonperson felonies in his criminal history score." Jackson responds and argues that the district court correctly excluded his prior criminal threat convictions from his criminal history. He also argues that the district court correctly classified his Missouri conviction for statutory sodomy in the first-degree as a nonperson felony.
Under the revised Kansas Sentencing Guidelines Act (KSGA), a defendant's sentence depends on the crime of conviction and the defendant's criminal history score. K.S.A. 2020 Supp. 21-6804(d). As discussed above, the district court found Jackson's criminal history score to be C. But if one or two of the challenged offenses should have been a person felony, then Jackson's criminal history score should have been either B or A, thus increasing his presumptive sentence. See K.S.A. 2020 Supp. 21-6804(a).
State v. Coleman , 311 Kan. 305, 308, 460 P.3d 368 (2020).
Did the district court err in finding Jackson's two prior criminal threat convictions could not be counted in his criminal history?
"Prior 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." K.S.A. 2020 Supp. 21-6810(d)(9). In October 2019, the Kansas Supreme Court held "the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a threat of violence is made in reckless disregard for causing fear causes the statute to be unconstitutionally overbroad because it can apply to statements made without the intent to cause fear of violence." Boettger , 310 Kan. at 822-23.
Jackson had a 2016 and a 2017 conviction for criminal threat. The district court examined the charging document, the plea, and the factual basis for the plea in each case and found that none of the documents allowed it to determine which version of criminal threat—reckless or intentional—Jackson was convicted of. As a result, the district court ruled the convictions could not be counted as it was not clear that Jackson was not convicted of the reckless version of criminal threat, a statute that had since been determined unconstitutional.
The State concedes that Jackson pled to both alternatives of criminal threat—reckless and intentional. But the State argues that the district court erred in excluding the convictions. First, the State asserts that Jackson should not be permitted to attack his prior pleas because the convictions have not been declared invalid. Second, the State argues that it only had to prove the validity of Jackson's prior convictions by a preponderance of the evidence and that it met that burden because Jackson pled to both versions of the crime. The State asserts that if the reckless language is struck from the charging documents and the plea, then Jackson did in fact plead to the intentional version.
Jackson argues the district...
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