State v. Obregon

Citation309 Kan. 1267,444 P.3d 331
Decision Date28 June 2019
Docket NumberNo. 117,422,117,422
Parties STATE of Kansas, Appellee, v. Christopher OBREGON, Appellant.
CourtUnited States State Supreme Court of Kansas

Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jason B. Oxford, assistant county attorney, argued the cause, and Krista Blaisdell, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Biles, J.:

Christopher Obregon appeals his sentence after pleading no contest to drug offenses. He challenges whether a prior Florida battery conviction should be classified as a person felony. Obregon also disagrees with the Court of Appeals decision to remand his case for a jury trial on whether a firearm sentence enhancement is appropriate. We affirm in part, reverse in part, vacate sentences, and remand to the district court with directions.

We vacate Obregon's sentence and order the district court to reconsider the Florida conviction's person-crime classification. This is necessary because there were two alternative means of committing the Florida offense, and it is unclear which provided the basis for conviction. This may be significant because one version of the Florida offense lacks a comparable Kansas person offense, so it would not support the person-crime classification the district court gave it. See State v. Wetrich , 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018). We also order that Obregon's resentencing proceed without the firearm enhancement. The panel's remand for a jury finding is contrary to our state's general rule against special verdicts in criminal cases.

FACTUAL AND PROCEDURAL BACKGROUND

Obregon pleaded no contest to one count each of marijuana possession with intent to distribute and cocaine possession with intent to distribute. These offenses occurred in May 2016. In exchange, the State dismissed 18 other drug charges.

Under K.S.A. 2018 Supp. 21-6805(g)(1), "if the trier of fact makes a finding that an offender ... in the furtherance of a drug felony, possessed a firearm, ... the offender shall be sentenced to: (A) ... an additional 6 months' imprisonment." In its complaint, the State alleged both counts Obregon pleaded to carry the statutory enhancement. The plea agreement provided for the enhancement.

The district court accepted Obregon's no contest pleas, found him guilty of both offenses, and applied the enhancement.

Obregon's presentence investigation report recommended a B criminal history score. It listed four prior convictions, including a 2012 Florida battery conviction, which the PSI report recommended be scored as a person felony. Obregon would have had a criminal history score of C if the Florida battery was scored as a nonperson felony. See K.S.A. 2018 Supp. 21-6809 (criminal history categories in scale).

Florida's battery statute contains two ways to commit the offense. One is identical to a Kansas battery, but the other is broader. See Fla. Stat. § 784.03(1)(a) (2009). The PSI report did not show which version in the Florida statute Obregon was convicted of violating. He did not object to his criminal history at sentencing.

The district court denied a downward dispositional departure motion and sentenced Obregon to 79 months' imprisonment for cocaine possession and to a concurrent 55-months' prison term for the marijuana possession. Obregon timely appealed.

A Court of Appeals panel concluded the district court properly calculated Obregon's criminal history score. State v. Obregon , No. 117,422, 2018 WL 911215, at *3 (Kan. App. 2018) (unpublished opinion). But it also held Obregon invalidly waived his right to jury trial on the firearm enhancement. 2018 WL 911215, at *3. The panel vacated the enhancement and remanded to the district court either for Obregon to properly waive his jury trial right or for a jury to make the factual findings required by K.S.A. 2015 Supp. 21-6805(g)(1) regarding the firearm. 2018 WL 911215, at *3.

Obregon timely petitioned for review of the panel's decision, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

THE FLORIDA BATTERY CONVICTION

To be scored as a person crime, a prior out-of-state conviction must have elements identical to or narrower than a Kansas person crime. Wetrich , 307 Kan. at 562, 412 P.3d 984. Obregon challenges whether the district court properly scored his Florida conviction as a person crime without knowing which version of the Florida crime he committed.

Standard of review

Classification of prior offenses for criminal history purposes involves statutory interpretation, which is a question of law subject to unlimited review.

Wetrich , 307 Kan. at 555, 412 P.3d 984 (applying unlimited review standard to whether prior out-of-state conviction should be classified as person felony).

Discussion

Under the revised Kansas Sentencing Guidelines Act:

"(1) Out-of-state convictions and juvenile adjudications shall be used in classifying the offender's criminal history.
"(2) An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction:
....
"(3) The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime. " (Emphasis added.) K.S.A. 2015 Supp. 21-6811(e).

At the time Obregon's sentence was pronounced, our caselaw construed K.S.A. 2015 Supp. 21-6811(e) (formerly K.S.A. 21-4711 [e] ) to mean "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical." State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 (2003). "[T]he comparable offense" was "the closest approximation to" the out-of- state crime. 276 Kan. at 179, 72 P.3d 925. But Obregon seeks the benefit of Wetrich , which announced a different interpretation on March 9, 2018—more than a year after Obregon was sentenced, and a month after the Court of Appeals decision rejecting his criminal-history-score challenge. See Obregon , 2018 WL 911215, at *1 (opinion filed February 16, 2018).

Our recent caselaw supports Obregon. In State v. Murdock , 309 Kan. 585, 591-92, 439 P.3d 307 (2019) ( Murdock II ), we held that "a party may seek and obtain the benefit of a change in the law during the pendency of a direct appeal, but a party moving to correct an illegal sentence is stuck with the law in effect at the time the sentence was pronounced." See also State v. Newton , 309 Kan. ––––, 442 P.3d 489, 2019 WL 2399484, at *3 (No. 116,098, filed June 7, 2019) (holding defendant sentenced before Wetrich could not rely on Wetrich in motion to correct an illegal sentence); State v. Keel , 302 Kan. 560, 562, 357 P.3d 251 (2015) (reaching merits of defendant's sentencing challenge relying on State v. Murdock , 299 Kan. 312, 319, 323 P.3d 846 [2014] [ Murdock I ], when defendant "filed a motion with [the Supreme] [C]ourt to correct an illegal sentence" after review was granted in his direct appeal). Accordingly, we apply Wetrich to Obregon's sentencing appeal.

The Wetrich court held:

"For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced ." ( Emphasis added.) 307 Kan. at 562, 412 P.3d 984.

If any element in the out-of-state crime is broader than any element comprising the Kansas crime to which it is being compared, the crimes are not comparable and the out-of-state crime must be classified as a nonperson offense. 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984. In Wetrich , the court noted a Missouri burglary statute defined the structure involved to include "non-dwelling places," so this made the Missouri statute broader than the Kansas burglary-of-a-dwelling statute, which specified the structure must be a dwelling. 307 Kan. at 563-64, 412 P.3d 984. Also, the Missouri statute required a specific intent to "commit any crime," which was broader than the Kansas statute's "intent to commit a felony, theft, or sexual battery therein." 307 Kan. at 563, 412 P.3d 984.

In State v. Buell , 307 Kan. 604, 608, 412 P.3d 1004 (2018), the Kansas burglary-of-a-dwelling offense was determined not to be comparable to a Florida burglary because it could be committed " with the intent to commit an offense therein ,’ " as opposed to Kansas' required " ‘intent to commit a felony, theft or sexual battery therein.’ " Similarly in State v. Moore , 307 Kan. 599, 603, 412 P.3d 965 (2018), the court held the mental state element for Oregon burglary, i.e., " intent to commit a crime " in a dwelling, was fatally broader than the Kansas element.

In Florida, "[t]he offense of battery occurs when a person: 1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person." (Emphasis added.) Fla. Stat. § 784.03(1)(a). The crime is a felony when it is committed by "[a] person who has one prior conviction for battery, aggravated battery, or felony battery...." Fla. Stat. § 784.03(2). But a different offense called "Felony battery" occurs when a person "(a) Actually and intentionally touches or strikes another person against the will of the other; and (b) Causes great bodily harm, permanent disability, or permanent disfigurement." Fla....

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