State v. Steinert
| Decision Date | 24 June 2022 |
| Docket Number | 122,418 |
| Citation | 511 P.3d 986 (Table) |
| Parties | STATE of Kansas, Appellee, v. Justin W. STEINERT, Appellant. |
| Court | Kansas Court of Appeals |
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Hurst, P.J., Bruns and Gardner, JJ.
Justin W. Steinert entered an Alford plea to one count each of aggravated robbery, contributing to a child's misconduct, distribution of marijuana, and possession of distribution paraphernalia. As agreed to in the plea agreement, the State asked the district court to find that Steinert had committed aggravated robbery, a person felony, with a firearm. At sentencing, the district court found Steinert's criminal history score to be H, and Steinert agreed. The district court informed Steinert at both the plea and sentencing hearings that he would need to register as a violent offender because of his aggravated robbery conviction, and it sentenced Steinert to 71 months of imprisonment.
Steinert appeals, raising multiple challenges to his sentence. He argues the district court failed to make specific findings triggering the registration requirement, and that substantial competent evidence does not support the district court's finding. He contends the district court imposed an illegal sentence, and that the Kansas Offender Registration Act (KORA) violates both Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and the Due Process Clause of the Fourteenth Amendment. And finally, he argues the Kansas Sentencing Guidelines Act (KSGA) violates section 5 of the Kansas Constitution and that the district court violated Apprendi by making judicial fact-findings of his prior convictions rather than have a jury consider those facts. But the Kansas Supreme Court has rejected all of these constitutional arguments. And our review of the record shows that the district court made the necessary finding to trigger the registration requirement, and that substantial competent evidence supports that finding. Nor do we find that Steinert's criminal history score renders his sentence illegal. We thus find no reversible error.
In November 2018, the State charged Justin W. Steinert with kidnapping, aggravated assault, contributing to a child's misconduct or deprivation, distribution of marijuana, and possession of distribution paraphernalia. In November 2019, under a plea agreement, Steinert entered Alford pleas to one count each of aggravated robbery, contributing to a child's misconduct, distribution of marijuana, and possession of distribution paraphernalia. The plea agreement said the State would ask the district court to find that Steinert committed the crimes with a firearm. It also included a provision stating Steinert acknowledged his duty to register under the KORA because of the aggravated robbery conviction.
During the plea hearing, the State proffered a factual basis for the crimes. That factual basis alleged Steinert pointed a gun at J.B., a 15-year-old boy who was walking by a residence, and escorted him into the residence at gun point. Steinert made J.B. sit on the couch, then took his cellphone to find J.B.’s phone number and address. Steinert left the boy momentarily and returned with a Tupperware container containing a "green botanical substance, ... later confirmed [to be] marijuana" and a small baggie of the same. Steinert gave the items to J.B. and instructed him to go sell the marijuana substance and return with the money. Steinert then allowed J.B. to leave.
Rather than complying with Steinert's demands, J.B. went straight home and reported the events to his stepfather. When law enforcement officers responded to the scene they found Steinert and saw a disassembled firearm in plain view on the couch J.B. said he had been told to sit on. Steinert later admitted to law enforcement that he had given J.B. a scale and marijuana to sell.
The district court accepted Steinert's plea, finding it was knowingly and voluntarily made. The State asked the court to make the firearm finding, and it did so. The district court told Steinert that he needed to register his current address at all times under KORA. The district court ensured Steinert had read and understood the written notice of his duty to register.
Steinert's Presentence Investigation report (PSI) showed his criminal history score was H based on a classification of two nonperson adult misdemeanors: one Kansas conviction for driving while suspended; and one Arkansas municipal violation of ordinance "5-36-116", described as "Theft/Shoplifting" in Cleburne County, Arkansas. The PSI also showed that if the district court found Steinert committed a person felony with a deadly weapon, the sentencing statute would require presumptive imprisonment and Steinert would need to register as a violent offender.
At sentencing, the district court found Steinert's criminal history score to be H. Neither Steinert nor the State objected. The district court asked Steinert personally whether he agreed with his criminal history score on the PSI, and Steinert replied affirmatively. The district court then sentenced Steinert to a controlling 71-month term of imprisonment for the primary crime of conviction and ordered all other sentences to run concurrently.
Steinert timely appeals, challenging his sentence.
We first address Steinert's assertion that the district court erred because it used a criminal history score that may have been incorrect because it depended on his Arkansas conviction. If his Arkansas conviction is not used, his criminal history score would have been I instead of H.
Steinert entered an Alford plea, got a presumptive sentence, and failed to raise this issue to the district court. Any one of those facts would ordinarily preclude us from addressing the merits of this argument on appeal. See K.S.A. 2021 Supp. 22-3602(a) (); K.S.A. 2021 Supp. 21-6820(c) (); State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014) (). But general rules have exceptions, and the Kansas Supreme Court liberally construes the laws in this context, so we choose to address this claim on the merits. State v. Gray , 311 Kan. 164, 170, 459 P.3d 165 (2020).
Whether a sentence is illegal is a question of law over which we have unlimited review. State v. Sartin , 310 Kan. 367, 369, 446 P.3d 1068 (2019). Similarly, statutory interpretation of the revised KSGA is a question of law subject to our unlimited review. State v. Wetrich , 307 Kan. 552, 555, 412 P.3d 984 (2018).
Steinert argues his Arkansas conviction cannot be scored against him because: (1) K.S.A. 2018 Supp. 21-6811(e)(4) does not account for prior out-of-state municipal convictions; (2) the State did not meet its burden to prove his Arkansas conviction was properly classified under K.S.A. 2018 Supp. 21-6811(e)(2) ; and (3) the Kansas Supreme Court decision in State v. Youngblood , 288 Kan. 659, Syl. ¶ 3, 206 P.3d 518 (2009), requires all prior convictions in which a district court imposes jailtime to have been "counseled" as required by the Sixth Amendment. We are not persuaded.
Steinert committed his crimes in November 2018, so K.S.A. 2018 Supp. 21-6811 controls his sentence. See State v. Rice , 308 Kan. 1510, 1512, 430 P.3d 430 (2018) (). K.S.A. 2018 Supp. 21-6811(e)(4) defines out-of-state convictions as "[c]onvictions or adjudications occurring within the federal system, other state systems, the District of Columbia, foreign, tribal or military courts." Steinert contends this statute fails to mention municipal convictions so his out-of-state municipal conviction cannot be considered.
But it is unclear that Steinert's Arkansas conviction was a municipal conviction. True, the PSI shows the jurisdiction is "M" for "Municipal" for Steinert's violation of the "Statute/Ordinance" number "5-36-116," described as "Theft/Shoplifting." But it also shows Steinert's conviction was in Cleburne County, in the city of Heber Springs, in "Cleburne Co. District" court, and the Arkansas code provides that the Cleburne County District Court is an Arkansas state court and part of the overall Arkansas state court system. Ark. Code Ann. § 16-17-1110 (2015).
But even if Steinert's Arkansas conviction was a municipal conviction, we find no merit to his argument. Our court has repeatedly and correctly rejected the argument that out-of-state municipal convictions do not count in a defendant's criminal history. See State v. Herrelson , No. 123,346, 2022 WL 68122, at *2-3 (Kan. App. 2022) (unpublished opinion) (); State v. Keith , No. 122,456, 2021 WL 2387240, at *5 (Kan. App. 2021) (unpublished opinion) (), rev. denied 314 Kan. 857 (2021); State v. Cross , No. 121,517, 2020 WL 5079891, at *2-3 (Kan. App. 2020) (unpublished opinion) (). These cases are soundly reasoned and are persuasive.
When determining legislative intent, we must consider various provisions of an act in pari materia with a view of reconciling and...
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