State v. Macias, 85,975.
Decision Date | 18 January 2002 |
Docket Number | No. 85,975.,85,975. |
Citation | 30 Kan. App.2d 79,39 P.3d 85 |
Parties | STATE OF KANSAS, Appellee, v. DANIEL MACIAS, Appellant. |
Court | Kansas Court of Appeals |
Patrick H. Dunn, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.
Lois K. Malin, assistant county attorney, R. Lee McGowan, deputy county attorney, and Carla J. Stovall, attorney general, for appellee.
Before BEIER, P.J., PIERRON, J., and WAHL, S.J.
Daniel Macias appeals his sentence for one count of aggravated robbery, contending the district court erroneously included deferred adjudications from Texas in determining his criminal history score.
Macias' presentence investigation report listed six prior felony convictions from Texas, including five for aggravated assault against a public servant and one for aggravated robbery. Macias objected to the inclusion of the convictions in his criminal history score because the prior Texas cases followed a "deferred adjudication" procedure.
Under this procedure, a Texas court does not enter a judgment of guilt immediately after a defendant's guilt is established by guilty plea or trial. Rather, the court defers adjudication under the provisions of Article 42.12(5)(a) of the Texas Code of Criminal Procedure and places the defendant on community supervision. If the community supervision is completed successfully, then the case is dismissed and the defendant discharged.
Macias argues this procedure is equivalent to a Kansas diversion, which, if successfully completed, is not counted as a conviction in a person's criminal history. See K.S.A. 21-4710(a). The district court made the following findings of fact on the way to ruling against Macias on this point: (1) Macias pleaded guilty to the offenses in Texas; (2) the Texas court reviewed the evidence and found the guilty plea had factual support; (3) Macias gave an informed consent and knowingly waived his rights; and (4) Macias was represented by counsel in Texas. The court then held that the intention behind calculating a defendant's criminal history score in Kansas was to deal more harshly with those who have demonstrated their propensity toward criminal behavior in the past and, under State v. Presha, 27 Kan. App.2d 645, 8 P.3d 14,rev. denied 269 Kan. 939 (2000), the Texas cases qualified as preexisting convictions. Their inclusion in Macias' criminal history under the Kansas sentencing guidelines made his score an "A" rather than an "I." This gave Macias a presumptive sentence of 221 months' imprisonment rather than 59 months' imprisonment.
Macias contends his Texas deferred adjudications were the equivalent of a diversion under Kansas law, which would not be included in his criminal history under K.S.A. 21-4710(a) and Presha. The State argues a Texas deferred adjudication is materially distinct from a Kansas diversion. This issue is one of statutory interpretation; thus our scope of review is unlimited. State v. Vontress, 266 Kan. 248, 259, 970 P.2d 42 (1998).
Under Kansas law, after a complaint charging a defendant with the commission of a crime has been filed but before a conviction, the State may propose a diversion agreement. K.S.A. 22-2907(1). A diversion agreement is a "specification of formal terms and conditions which a defendant must fulfill in order to have the charges against him or her dismissed." K.S.A. 22-2906(4). A defendant is not required to enter a plea to the criminal charge as a condition for diversion. K.S.A. 22-2910. If the prosecutor finds the defendant has failed to fulfill the diversion agreement, the district court is notified so it can make a determination of whether the defendant has failed to fulfill the terms of the agreement. If there has been a breach of the agreement, the district court resumes the criminal proceeding on the complaint. K.S.A. 2000 Supp. 22-2911(a). If, on the other hand, the defendant fulfills the terms of the agreement, the district court dismisses the criminal charges with prejudice. K.S.A. 2000 Supp. 22-2911(b). Diversions are not counted as part of a defendant's criminal history. See State v. Hodgden, 29 Kan. App.2d 36, 41, 25 P.3d 138 (2001).
In Texas, the statutory deferred adjudication procedure includes the following language:
Macias urges us to focus on three similarities between the Texas deferred adjudication scheme and the Kansas diversion program: (1) Both can be used to stay further criminal proceedings in the interest of justice; (2) both require the defendant to obey certain terms and conditions during the diversion or community supervision period; and (3) both require dismissal of the case at the successful conclusion of the diversion or community supervision period.
We regard one important difference as critical, however. In Texas, the district court may defer adjudication only after the defendant enters a guilty or nolo contendere plea, or proceeds to a trial where guilt is demonstrated. On the contrary, in Kansas, the State in the person of the prosecutor decides whether to offer diversion; the defendant is not required to enter a plea; no trial is held; and the district court does not make a finding that the evidence substantiates the defendant's guilt. None of these steps is...
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