State v. Smith, 116,586

Citation441 P.3d 472
Decision Date17 May 2019
Docket NumberNo. 116,586,116,586
Parties STATE of Kansas, Appellee, v. Robin SMITH, Appellant.
CourtUnited States State Supreme Court of Kansas

Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause, and Patrick H. Dunn, of the same office, was on the briefs for appellant.

Shawn E. Minihan, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

Robin Smith appeals her sentence after pleading guilty to trafficking contraband in a jail. She argues the district court should not have included a Missouri municipal ordinance violation for endangering the welfare of a child as a person misdemeanor when calculating her criminal history score. The Court of Appeals agreed, vacated her sentence, and remanded with directions to exclude the Missouri ordinance violation at resentencing. State v. Smith , No. 116586, 2017 WL 4558253 (Kan. App. 2017) (unpublished opinion). The State seeks review of that decision. We affirm, although our reasoning differs from the panel.

Under the Revised Kansas Sentencing Guidelines Act, K.S.A. 2015 Supp. 21-6801 et seq., an out-of-state crime is classified as either a felony or a misdemeanor according to the convicting jurisdiction when calculating an offender's criminal history score. K.S.A. 2015 Supp. 21-6811(e)(2). But Missouri does not consider municipal ordinance violations to be crimes, and the relevant municipal code designates some violations as misdemeanors, but not Smith's. This case is remanded for resentencing with directions to exclude the Missouri ordinance violation.


Smith pleaded guilty to trafficking contraband in a jail, a crime the State alleged occurred on January 21, 2016. The district court accepted the plea, pronounced her guilty, and ordered a presentence investigation. Her criminal history worksheet assigned her a score of "D." It reflected nine prior misdemeanor offenses, but only five were scored. Among those scored as an "Adult Misdemeanor Conversion" was a 2005 municipal ordinance violation from Lake Lotawana, Missouri, for endangering the welfare of a child.

It is undisputed this ordinance violation is not a crime under Missouri state law. Similarly, Lake Lotawana Municipal Code does not consider Smith's ordinance violation to be a felony or misdemeanor. Lake Lotawana Mun. Code § 210.050 (2010). In fact, the city's municipal code designates some offenses as misdemeanors, but not that one. Compare Lake Lotawana Mun. Code § 110.140 (2010) (providing city treasurer guilty of misdemeanor upon disbursing city funds on warrant or order of board of aldermen before requisite financial statement published); § 205.130.B. (declaring animal neglect a misdemeanor); § 210.190 (declaring corrupting or diverting water supply a misdemeanor); § 210.250 (declaring discharging an air gun or similar devices a misdemeanor); § 125.150 ("Any person charged with a violation of a municipal ordinance of this City shall be entitled to a trial by jury, as in prosecutions for misdemeanors ...." [Emphasis added.] ), with Lake Lotawana Mun. Code § 210.050 (silent on designation of misdemeanor for conviction of endangering the welfare of a child).

In Kansas, a criminal history score of "D" applies when "[t]he offender's criminal history includes one adult conviction or juvenile adjudication for a person felony, but no adult conviction or juvenile adjudications for a nonperson felony." K.S.A. 2015 Supp. 21-6809. And because Smith did not have any prior felony convictions, her "D" score must have been based on K.S.A. 2015 Supp. 21-6811(a), which provides:

"Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender's criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes."

Smith did not object to her criminal history score at the time. Instead, she requested a downward dispositional departure, which the district court denied before sentencing her according to the plea agreement. It imposed the low grid box, 50-month prison sentence and ordered the sentence to run concurrently with a sentence in a different case for which she was on probation. Smith timely appealed. The only issue raised is whether the sentencing court properly classified her ordinance violation as a misdemeanor.

Smith argued a crime's classification depends on how the convicting jurisdiction classifies it, and city ordinance violations are not crimes under Missouri law. The State countered that the violation was properly scored. It argued the Legislature intended municipal ordinances to be scored, and that Smith's violation was comparable to the Kansas endangering a child misdemeanor. See K.S.A. 2018 Supp. 21-5601(a), (c)(1). Alternatively, it insisted any error classifying the Lake Lotawana child endangerment violation as a misdemeanor was harmless because she had another ordinance violation that could be scored as a misdemeanor, i.e., a Lake Lotawana assault.

The Court of Appeals vacated Smith's sentence and remanded her case to the district court for resentencing. It held the rule of lenity applied because the sentencing guidelines were silent about how to classify an out-of-state ordinance violation when the convicting jurisdiction does not consider an ordinance violation to be a crime. Smith , 2017 WL 4558253, at *4-5 (citing State v. Horselooking , 54 Kan. App. 2d 343, 400 P.3d 189 [2017] ). It rejected the State's harmless error argument because the ordinance violation for assault suffers from the same problem, i.e., Missouri does not classify municipal ordinance violations for assault as misdemeanors or felonies, or even crimes. 2017 WL 4558253, at *5.

We granted the State's timely petition for review. 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 issue is whether the sentencing court erred in classifying Smith's Missouri municipal ordinance violation as a misdemeanor when calculating her criminal history score.

Standard of review

Whether either ordinance violation should be included in Smith's criminal history involves interpretation of the KSGA. This is a question of law subject to unlimited review. State v. Keel , 302 Kan. 560, 571, 357 P.3d 251 (2015).

When interpreting a statute, an appellate court begins with the fundamental rule that the court gives effect to the legislative intent as expressed in the statute. The court must apply the statute's plain language when it is clear and unambiguous, instead of determining what the law should be, speculating on the legislative intent, or consulting the legislative history. The court must derive the legislative intent by first applying the meaning of the statute's text to decide its effect in a specific situation. It is only when the statutory language is unclear or ambiguous that the court uses the canons of statutory construction, reviews the statute's legislative history, or considers other background information to ascertain the statute's meaning. State v. Collins , 303 Kan. 472, 474, 362 P.3d 1098 (2015).

Statutory background

Under the KSGA, an offense's sentencing range is determined by the current crime's severity level and the offender's criminal history score. Keel, 302 Kan. 560, Syl. ¶ 9, 357 P.3d 251. " [C]riminal history’ means and includes an offender's criminal record of adult felony, class A misdemeanor, class B person misdemeanor or select misdemeanor convictions and comparable juvenile adjudications at the time such offender is sentenced." K.S.A. 2015 Supp. 21-6803(c). The Act provides:

"(a) Criminal history categories contained in the sentencing guidelines grids are based on the following types of prior convictions: Person felony adult convictions, nonperson felony adult convictions, person felony juvenile adjudications, nonperson felony juvenile adjudications, person misdemeanor adult convictions, nonperson class A misdemeanor adult convictions, person misdemeanor juvenile adjudications, nonperson class A misdemeanor juvenile adjudications, select class B nonperson misdemeanor adult convictions, select class B nonperson misdemeanor juvenile adjudications and convictions and adjudications for violations of municipal ordinances or county resolutions which are comparable to any crime classified under the state law of Kansas as a person misdemeanor, select nonperson class B misdemeanor or nonperson class A misdemeanor ....
"(d) Except as provided in K.S.A. 2015 Supp. 21-6815... the following are applicable to determining an offender's criminal history classification:
(5) All person misdemeanors, class A nonperson misdemeanors and class B select nonperson misdemeanors, and all municipal ordinance and county resolution violations comparable to such misdemeanors , shall be considered and scored . Prior misdemeanors for offenses that were committed before July 1, 1993, shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed." (Emphases added.) K.S.A. 2015 Supp. 21-6810.

The misdemeanor class designations and person/nonperson designations reflected in the "criminal history" definition and the quoted portions of K.S.A. 2015 Supp. 21-6810 are creatures of Kansas law devised for sentencing purposes. See K.S.A. 2015 Supp. 21-6602(a) (establishing classes of misdemeanors for sentencing purposes); Keel , 302 Kan. at 574, 357 P.3d 251 ("Upon implementation of the KSGA, the legislature added person and nonperson language to most criminal statutes defining crimes.").

K.S.A. 2015 Supp. 21-6811 supplies...

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