State v. Macias, 85,975.

Decision Date18 January 2002
Docket NumberNo. 85,975.,85,975.
Citation30 Kan. App.2d 79,39 P.3d 85
PartiesSTATE OF KANSAS, Appellee, v. DANIEL MACIAS, Appellant.
CourtKansas 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.

BEIER, 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:

"(a) Except as provided by Subsection (d) of this section, when in the judge's opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision....
"(b) On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge.... After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred....
"(c) On expiration of a community supervision period imposed under Subsection (a) of this section, if the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him.... For any defendant who receives a dismissal and discharge under this section:
(1) upon conviction of a subsequent offense, the fact that the defendant had previously received community supervision with a deferred adjudication of guilt shall be admissible before the court or jury to be considered on the issue of penalty." Tex. Code Crim. Proc. Ann. 42.12(5)(a), (b), and (c)(1) (West 2002 Supp.).

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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10 cases
  • State v. Hankins
    • United States
    • Kansas Court of Appeals
    • February 21, 2014
    ...included a Missouri offense since defendant plead guilty, although he received a suspended imposition of sentence); State v. Macias, 30 Kan.App.2d 79, 39 P.3d 85 (2002) (criminal history properly included a deferred sentence under Texas law where defendant's factual guilt was established in......
  • State v. Chamberlain
    • United States
    • Kansas Supreme Court
    • September 30, 2005
    ...(d); see K.S.A. 12-4412 and K.S.A. 12-4416(e). Diversions are not counted as part of a defendant's criminal history. State v. Macias, 30 Kan.App.2d 79, 81, 39 P.3d 85, rev. denied 273 Kan. 1038 (2002). Kansas courts have applied contract principles when interpreting diversion agreements. Se......
  • State v. Howard
    • United States
    • Kansas Court of Appeals
    • December 5, 2014
    ...determining the correct sentence under our sentencing guidelines, which factor in the number of prior convictions. In State v. Macias, 30 Kan.App.2d 79, 83, 39 P.3d 85, rev. denied 273 Kan. 1038 (2002), our court counted an out-of-state adjudication of guilt as a prior conviction that incre......
  • State v. Hankins
    • United States
    • Kansas Supreme Court
    • April 22, 2016
    ...but it also sufficiently establishes the defendant's guilt to be considered a conviction under the rationale of State v. Macias, 30 Kan.App.2d 79, 83, 39 P.3d 85, rev. denied 273 Kan. 1038 (2002).After the district court ruled on the illegal sentence motion, Hankins filed a pro se amended s......
  • Request a trial to view additional results

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