State v. Pollman
| Decision Date | 10 May 2019 |
| Docket Number | No. 118,672,118,672 |
| Citation | 441 P.3d 511 |
| Parties | STATE of Kansas, Appellee, v. Robert Kenton POLLMAN Jr., Appellant. |
| Court | Kansas Court of Appeals |
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Powell, P.J., Atcheson and Gardner, JJ.
Robert Kenton Pollman Jr. appeals the sentence imposed in 2017 for his conviction of attempted possession of methamphetamine. He claims the district court erroneously classified his 2011 conviction as a person felony in computing his criminal history. But Pollman's claim is no run-of-the-mill claim of an illegal sentence. Instead, the parties agree that the crime to which Pollman pleaded and which was later classified as a prior felony for purposes of his criminal history did not exist.
We have repeatedly held that a defendant may plead to a nonexistent crime as part of a beneficial plea agreement so long as the defendant was initially brought into court on a valid pleading and voluntarily and knowingly entered into the plea agreement. That is what happened here. The question before us, which we have not previously determined, is how to classify a nonexistent crime for purposes of a defendant's criminal history score.
We reject Pollman's claim that his plea of guilty to a nonexistent offense was a nullity, finding a valid distinction between an attack on a conviction based on a nonexistent offense following a jury verdict and a nullity claim raised after a plea of guilty or no contest. Even though a jury verdict would not be sustainable, a plea presents an entirely different situation. We find Pollman's 2011 verified conviction should be scored as an omitted, unranked, or unclassified felony. The parties agree on appeal that Pollman's 2011 nonexistent offense was a nonperson offense. Because the district court scored it as a person felony instead of a nonperson felony, we vacate his sentence and remand for resentencing.
In May 27, 2011, the State charged Pollman with discharging a firearm at an occupied building or vehicle and two counts of criminal damage to property. Specifically, the complaint/information charged in Count I that on May 15, 2011, Pollman intentionally discharged a firearm at an occupied motor vehicle—a 2008 Dodge pickup, occupied by Shawnda Conner, in violation of K.S.A. 21-4219(b), a severity level 7 person felony. Count II charged Pollman with criminal damage to property of $ 1,000 to less than $ 25,000, a severity level 9 nonperson felony. Count III charged Pollman with criminal damage to Conner's property—shorts and/or suitcase, less than $ 1,000, a class B nonperson misdemeanor.
Pollman then entered a no-contest plea to discharge of a firearm at an unoccupied vehicle. K.S.A. 21-4219 prohibited criminal discharge of a firearm at an occupied building, at an unoccupied dwelling, or at an occupied vehicle and categorized all three as person felonies. That statute did not, however, prohibit criminal discharge of a firearm at an unoccupied vehicle. Pollman thus agreed to plead to a nonexistent offense.
We do not mean to suggest that Pollman's acts were lawful, as clearly they were not. Pollman's admitted act of shooting a firearm at an unoccupied vehicle could constitute a number of crimes, depending on facts not shown by our limited record. See, e.g., K.S.A. 2010 Supp. 21-4217(a)(1) (); K.S.A. 2010 Supp. 21-4217(a)(2) (). If nothing else, it constituted criminal damage to property. K.S.A. 21-3720 ().
Not surprisingly, no transcript of the 2011 plea hearing is included in the record on appeal from Pollman's 2017 conviction. As a result, we have no facts to show why the parties agreed to a plea to the amended charge of discharge of a firearm at an unoccupied vehicle. The parties could have erroneously believed that K.S.A. 21-4219 prohibited criminal discharge of a firearm at an unoccupied vehicle. That statute did, after all, prohibit criminal discharge of a firearm at an occupied building, at an unoccupied dwelling, and at an occupied vehicle. It seems more reasonable to believe that the parties made an error of law than that they intentionally agreed to fabricate a nonexistent crime out of whole cloth for Pollman's benefit. Why the parties agreed to this plea cannot now be determined. Either way, Pollman and the State agreed he would plead to a crime that did not exist.
Pursuant to the plea, the State dismissed the two counts of criminal damage to property. The district court categorized Pollman's nonexistent offense as a severity level 8 person felony and ordered Pollman to pay restitution in the amount of $ 4,278.72. The district court sentenced Pollman to 10 months in the custody of the Department of Corrections but granted him probation for 18 months for discharge of a firearm at an unoccupied vehicle. As far as we know, Pollman made no attempt to challenge his 2011 conviction until late in his current appeal arising from his 2017 sentence.
After a traffic stop on January 29, 2017, the State charged Pollman with possession of methamphetamine and driving on a suspended license. He eventually pleaded to attempted possession of methamphetamine. At his sentencing hearing the district court classified Pollman's criminal history score as a C, without objection, based partly on the nonexistent 2011 offense which the district court scored as a person felony. The court imposed a prison sentence of 24 months with 12 months of postrelease supervision for his 2017 crime.
Pollman appealed from his 2017 sentencing, contending that, for purposes of calculating his criminal history score in this case, the district court should have classified his nonexistent 2011 offense as a nonperson misdemeanor rather than as a person felony. His sole request was that the court vacate his sentence and remand for resentencing pursuant to the correct criminal history score of F. He argued that either by using the rule of lenity or by treating his 2011 conviction as an "unclassified crime," we should score his 2011 conviction as a nonperson misdemeanor.
During oral arguments, this court raised an issue the parties had not raised, questioning the validity of the 2011 conviction. The court permitted the parties to address that issue in supplemental briefs and they did so. Pollman then echoed the dissent's position that because his 2011 conviction was for a noncriminal act it was invalid or void for purposes of his criminal history.
Pollman concedes that he did not raise any issue regarding his sentence in the district court, but he contends that it is properly considered by this court as an illegal sentence under K.S.A. 22-3504. An illegal sentence may be corrected at any time, even for the first time on appeal. State v. McLinn , 307 Kan. 307, 349, 409 P.3d 1 (2018). Kansas appellate courts have previously considered legal challenges to criminal history scores, like Pollman's, for the first time on appeal as challenges to the legality of the sentences. See State v. Sturgis , 307 Kan. 565, 572, 412 P.3d 997 (2018) ; State v. Campbell , 307 Kan. 130, 133, 407 P.3d 240 (2017). We do the same.
We first examine whether Pollman's 2011 conviction for the nonexistent offense of discharging a firearm at an unoccupied vehicle should be used in his criminal history score. This requires us to examine Pollman's argument that his conviction is invalid because it was based on a nonexistent or hypothetical crime.
Pollman initially stated that he was not challenging his underlying 2011 conviction. Instead, his brief recognized that his 2011 conviction was likely valid even though K.S.A. 21-4219 did not prohibit discharging a firearm at an unoccupied vehicle:
Pollman changed his position in his supplemental brief, contending that his 2011 conviction was invalid because it was based on a nonexistent or hypothetical crime so it could not be counted in his criminal history. But Pollman cannot use this appeal which solely challenges his 2017 sentencing to attack his 2011 conviction, as Pollman now invites us to do. " K.S.A. 22-3504 is not a vehicle for a collateral attack on a conviction." State v. Williams , 283 Kan. 492, 495-96, 153 P.3d 520 (2007) . Our Supreme Court "has repeatedly stated that the relief available under K.S.A. 22-3504 is correction of a sentence, not reversal of a conviction." State v. Trotter , 296 Kan. 898, 902, 295 P.3d 1039 (2013). The same is true here.
But even if Pollman's challenge here were distinctively different than the typical K.S.A. 22-3504 motion, Pollman has forfeited his right to attack the underlying infirmity in the charge to which he pleaded no contest. Pollman cannot consider his 2011 conviction to be valid for all purposes but his criminal history. The fact of his 2011 conviction has been established and cannot be collaterally attacked now, as the following cases establish.
Kansas cases
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In re E.A.
...legal principle across markedly different circumstances; I do not repeat that discussion here. See State v. Pollman , 56 Kan. App. 2d 1015, 1047-50, 441 P.3d 511 (Atcheson, J., dissenting), rev. granted 310 Kan. 1069 (2019), dismissed as moot March 23, 2021; Brown v. Ryan , No. 104,088, 201......
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State v. Byrd
...("Aggravated burglary is a severity level 5, person felony."). Yet, based on our court's recent decision in State v. Pollman , 56 Kan. App. 2d 1015, 1026, 441 P.3d 511 (2019), rev. granted 310 Kan. 1069 (2019), for the first time on appeal, Byrd speculates that he may have pled to a nonexis......
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State v. Glover
...legal holding conflicts with appropriate judicial reasoning ... and can easily lead to erroneous outcomes." State v. Pollman , ––– Kan. App. 2d ––––, –––– – ––––, 441 P.3d 511, (No. 118,672 filed May 10, 2019), (Atcheson, J., dissenting). Such is the case with the State's reliance on Hardin......
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State v. Padilla-Loza
...and typically receives a reduction in charges, a favorable sentencing recommendation, or both. See State v. Pollman , 56 Kan. App. 2d 1015, 1042-43, 441 P.3d 511 (Atcheson, J., dissenting), rev. granted 310 Kan. 1069 (2019), dismissed as moot March 23, 2021. By their nature, plea agreements......
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Lying at Plea Bargaining
...first degree as charged is an unintended result that as a matter of law cannot be attempted." (citations omitted)).109. State v. Pollman, 441 P.3d 511, 517 (Kan. Ct. App. 2019) (holding that a defendant's prior conviction for a non-existent crime is still a conviction for the purposes of ca......