State v. Lackey
| Decision Date | 28 January 2011 |
| Docket Number | Nos. 102,531,102,532.,s. 102,531 |
| Citation | 246 P.3d 998,45 Kan.App.2d 257 |
| Parties | STATE of Kansas, Appellee,v.Gary LACKEY, Appellant. |
| Court | Kansas Court of Appeals |
[246 P.3d 1000 , 45 Kan.App.2d 257]
1. Interpretation of statutes is a question of law subject to an unlimited standard of review on appeal.
2. K.S.A. 21–4710 and K.S.A. 21–4711 set forth various rules for a sentencing court to follow in classifying prior convictions for purposes of calculating an offender's criminal history score.
3. In determining an offender's criminal history score, K.S.A. 21–4710(d)(7) directs a sentencing court to consider and score any convictions for prior municipal ordinance violations that are comparable to person or nonperson misdemeanors.
4. When a sentencing court is presented with out-of-state convictions, K.S.A. 21–4711(e) directs the sentencing court to classify the crime as a felony or misdemeanor consistent with the classification made by the convicting jurisdiction.
5. In order to ascertain legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature.
6. K.S.A. 21–4711 states that its provisions are to be used in addition to the provisions of K.S.A. 21–4710 to determine an offender's criminal history score. Thus, both statutes are relevant to classifying prior out-of-state municipal convictions for purposes of determining an offender's criminal history score.
7. State v. Hernandez, 24 Kan.App.2d 285, 944 P.2d 188, rev. denied 263 Kan. 888 (1997), is discussed and applied.
8. The provisions of the Kansas Sentencing Guidelines Act indicate, K.S.A. 21–4701 et seq. , that the legislature intended for a sentencing court, when scoring a prior conviction that was not designated by the convicting jurisdiction as a felony or misdemeanor, to make a felony or misdemeanor determination by comparing the prior conviction to the most comparable Kansas offense.
9. Where judicial construction of a statute has been in place for a number of years, the legislature is deemed to have approved the construction, and that construction is as much a part of the statute as if embodied in it in plain and unmistakable language.
10. An appellate court will not disturb a district court's decision to deny a presentence motion to withdraw a plea unless the defendant demonstrates the district court abused its discretion. A district court abuses its discretion when no reasonable person would agree with the decision made by the district court. An abuse of discretion also may be found if a district court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. Defendants bear the burden of establishing an abuse of discretion.
11. K.S.A. 22–3210(d) governs a motion to withdraw plea. When such a motion is filed prior to sentencing, the court has discretion to permit withdrawal of a plea if a defendant shows good cause. When the motion is filed after sentencing, the court may permit a defendant to withdraw a plea only upon a showing of manifest injustice.
12. Whether the standard of proof is good cause or manifest injustice, a district court generally will consider the following factors in ruling on a motion to withdraw plea: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.
13. State v. Schow, 287 Kan. 529, 197 P.3d 825 (2008), is discussed and distinguished.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.Casey L. Meyer, assistant district attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, for appellee.Before GREENE, P.J., GREEN and STANDRIDGE, JJ.STANDRIDGE, J.
On July 7, 2008, Gary Lackey pled guilty to one count of possession of cocaine in case No. 06CR1017 and one count of possession of cocaine in case No. 07CR1091. On appeal, Lackey argues the district court erred in sentencing him based on a criminal history score of C, which was calculated, in part, using three prior convictions for violating Kansas City, Missouri, ordinances. Alternatively, Lackey argues that even if his criminal history score was calculated correctly, the district court erred when it denied his motion to withdraw both of the pleas prior to sentencing. Finally, Lackey argues his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated because the district court used his criminal history to sentence him under the sentencing guidelines without the criminal history first being proved to a jury beyond a reasonable doubt.
Lackey agreed to plead guilty to one count of possession of cocaine in case No. 06CR1017 and to one count of possession of cocaine in case No. 07CR1091, both severity level 4 drug felonies. In exchange, the State agreed to dismiss the remaining charges in each case, dismiss a third case that was pending against Lackey for aggravated failure to appear, and recommend at sentencing a 6–month reduction in the sentence Lackey would receive for his conviction in case No. 06CR1017.
The district court accepted Lackey's pleas, found him guilty in each case of possession of cocaine, and ordered a presentence investigation (PSI) report prepared for each case. After the PSI reports were submitted showing that Lackey had a criminal history score of C (one person felony and one or more nonperson felonies), Lackey filed a motion challenging his criminal history score. The district court denied the motion. Given the court's ruling, Lackey filed a motion to withdraw his pleas, which the court also denied.
At sentencing, the district court followed the plea agreement and reduced Lackey's sentence in case No. 06CR1017 by 6 months, imposing a sentence of 24 months' imprisonment. In the other case, the district court granted a durational departure sentence of 24 months. Because Lackey was on felony bond when he was arrested for possession of cocaine in case No. 07CR1091, the district court ordered the sentences in each case to run consecutively. See K.S.A. 21–4603d(f)(3) ().
Lackey argues the district court erred in calculating his criminal history score. Relevant to the issue presented here, Lackey's criminal history includes two municipal domestic violence convictions and one municipal aggravated assault conviction—all three in violation of Kansas City, Missouri, Municipal Code § 26.13.2 (1967). Recodified in 1995, this section of the Kansas City, Missouri municipal code states: “No person shall, by an intentional, overt act, unlawfully inflict bodily injury or cause an unlawful, offensive contact upon the person of another.” See Kansas City, Missouri, Municipal Code § 50–169 (1995).
At sentencing, the district court reviewed the three municipal convictions referenced above and found them to be comparable to convictions for the crime of battery in Kansas, a class B person misdemeanor. See K.S.A. 21–3412(a) (). Relying on the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21–4701 et seq. , the district court determined that the three municipal convictions should be considered as three convictions for person misdemeanors and aggregated into one person felony. See K.S.A. 21–4710(d)(7) (); K.S.A. 21–4711(a) (). Lackey claims the district court's decision to convert the municipal convictions into person misdemeanors was error.
Because interpretation of statutes is a question of law, our review of this issue on appeal is unlimited. See State v. Vandervort, 276 Kan. 164, 173, 72 P.3d 925 (2003).
We begin our analysis with the relevant statutes. K.S.A. 21–4710 and K.S.A. 21–4711 set forth various rules for the sentencing court to follow in classifying prior convictions for purposes of calculating a criminal history score. K.S.A. 21–4710(d)(7) directs the sentencing court to consider and score convictions for prior municipal ordinance violations in determining criminal history if the prior violations are comparable to a person or nonperson misdemeanor. Based solely on the directive in K.S.A. 21–4710(d)(7), there is no question the district court properly determined that the municipal domestic violence and aggravated assault convictions were comparable to convictions for the crime of battery in Kansas, a class B person misdemeanor.
It is the out-of-state nature of these convictions that provides the basis for...
To continue reading
Request your trial
-
State v. Garcia
...the sentencing court was not bound by the State's recommendation of probation contained in the plea agreement.” State v. Lackey, 45 Kan.App.2d 257, 270, 246 P.3d 998 (2011). But Schow is easily distinguishable from Garcia's case. While Schow stressed assertions and assurances in analyzing t......
-
State v. Horselooking
...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 a......
- State v. Hoffman
-
State v. Smith
...the crime as a felony or misdemeanor consistent with the classification made by the convicting jurisdiction." State v. Lackey , 45 Kan. App. 2d 257, 261, 246 P.3d 998 (2011). Then, it must classify the crime as a person or nonperson offense by referring to comparable offenses under the Kans......
-
Appellate Decisions
...would be classified as a felony under State v. Hernandez, 24 Kan. App. 2d 285, rev. denied 263 Kan. 888 (1997), and State v. Lackey, 45 Kan. App. 2d 257, rev. denied 292 Kan. 968 (2011), but panel discussed why the Kansas Supreme Court would not embrace Hernandez and Lackey in this case. Wh......