State v. Rankin
| Decision Date | 30 April 2021 |
| Docket Number | No. 122,818,122,818 |
| Citation | 489 P.3d 471,60 Kan.App.2d 60 |
| Court | Kansas Court of Appeals |
| Parties | STATE of Kansas, Appellee, v. Jeffrey Allen RANKIN, Appellant. |
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Douglas A. Matthews, assistant county attorney, M. Levi Morris, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Malone, P.J., Atcheson, J., and Burgess, S.J.
Jeffrey Allen Rankin appeals his sentence following his convictions of two counts of sexual exploitation of a child. For the first time in this direct appeal, Rankin challenges his criminal history score, which included a juvenile adjudication for terroristic threat. Because the record at sentencing did not reflect whether his adjudication for terroristic threat stemmed from intentional or reckless conduct, Rankin asserts he may have a right to relief under the holding in State v. Boettger , 310 Kan. 800, 822, 450 P.3d 805 (2019), cert. denied ––– U.S. ––––, 140 S. Ct. 1956, 207 L.Ed.2d 1089 (2020).
The State recognizes that remand is generally the remedy in this situation, but it asks this court to take judicial notice of the complaint from Rankin's terroristic threat adjudication and determine that he was adjudicated of the intentional version of the statute. For the reasons stated in this opinion, we decline the State's request to take judicial notice of any document from the district court and to make factual findings to determine Rankin's criminal history score, and we remand the case to district court to make the appropriate findings.
On February 1, 2018, Rankin pled guilty to two counts of sexual exploitation of a child in exchange for dismissal of other charges. The presentence investigation (PSI) report revealed that Rankin had a criminal history score of B, based in part on a 1983 Barton County juvenile person adjudication for terroristic threat. The presumptive sentence for Rankin's primary offense was 114-120-128 months' imprisonment.
At the sentencing hearing on April 24, 2018, Rankin did not object to his criminal history score. The district court sentenced Rankin to 128 months' imprisonment for his primary offense and a consecutive term of 34 months' imprisonment on the other count for a controlling sentence of 162 months' imprisonment with lifetime postrelease supervision. Rankin timely appealed his sentence. There was a delay in appointing appellate counsel and the appeal was not docketed until April 2020.
Rankin claims, for the first time on appeal, that the district court erred in calculating his criminal history score. Rankin correctly asserts that he can raise a challenge to his criminal history score for the first time on appeal. See State v. Dickey , 305 Kan. 217, 220, 380 P.3d 230 (2016) ().
Under the revised Kansas Sentencing Guidelines Act (KSGA), a defendant's sentence depends on the crime of conviction and the defendant's criminal history score. K.S.A. 2020 Supp. 21-6804(d). "Prior convictions of a crime defined by a statute that has since been determined unconstitutional by an appellate court shall not be used for criminal history scoring purposes." K.S.A. 2020 Supp. 21-6810(d)(9). In October 2019, while Rankin's direct appeal was pending, the Kansas Supreme Court held "the portion of K.S.A. 2018 Supp. 21-5415(a)(1) allowing for a conviction if a threat of violence is made in reckless disregard for causing fear causes the statute to be unconstitutionally overbroad because it can apply to statements made without the intent to cause fear of violence." Boettger , 310 Kan. at 822, 450 P.3d 805.
Citing these rules, Rankin argues that because his criminal history score included a 1983 juvenile adjudication for terroristic threat, which he claims is a prior version of the criminal threat statute, and the PSI does not show whether the adjudication stemmed from the intentional or wanton disregard version of the offense, his case must be remanded for resentencing. The State agrees with Rankin's summary of the applicable rules and his assertion that Boettger applies but disagrees that remand is necessary.
Classification of prior convictions for criminal history purposes involves statutory interpretation of the KSGA. Statutory interpretation is a question of law subject to unlimited review. State v. Wetrich , 307 Kan. 552, 555, 412 P.3d 984 (2018).
Rankin is correct that he may receive the benefit of Boettger , a change in the law, because it occurred while his direct appeal was pending. See State v. Murdock , 309 Kan. 585, 591, 439 P.3d 307 (2019) (). Rankin also correctly asserts that although he was adjudicated for "terroristic threat," the crime was later renamed "criminal threat" using almost the exact language as the crime of terroristic threat. Compare K.S.A. 1992 Supp. 21-3419 (defining terroristic threat) with K.S.A. 1993 Supp. 21-3419 (defining criminal threat).
Boettger imprisonment.
The State has the burden to prove a defendant's criminal history. K.S.A. 2020 Supp. 21-6814(c) ; State v. Obregon , 309 Kan. 1267, 1275, 444 P.3d 331 (2019). When the district court sentenced Rankin in April 2018, Boettger had yet to be decided, and there was no dispute over whether Rankin was adjudicated of the intentional or reckless version of terroristic threat. As a result, the State did not prove which version of the crime applied to Rankin. Because the PSI does not provide the answer, this court would generally remand for resentencing, directing the district court to apply the " ‘modified categorical approach’ "—which allows the examination of " ‘charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms’ "—to determine which statutory alternative was the basis for conviction. Obregon , 309 Kan. at 1274, 444 P.3d 331 ().
The State recognizes that remand is generally the remedy in this situation. But the State asks this court to take judicial notice of the complaint from Rankin's terroristic threat adjudication in Barton County case No. 83JV61, which it included in the record on appeal, and determine that he was adjudicated of the intentional version of the statute "to avoid an unnecessary remand and a waste of judicial resources." The State points to a copy of the complaint that charged Rankin with terroristic threat and alleged that he acted "willfully" with the "intent to cause the evacuation of a building."
K.S.A. 60-409(b)(4) provides that a court may take judicial notice of "specific facts and propo...
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