State v. Terrell, 040921 KSCA, 122, 680

• Opinion Judge: SCHROEDER, J.
• Party Name: State of Kansas, Appellee, v. Robert Glenn Terrell, Appellant.
• Attorney: Kristen B. Patty, of Wichita, for appellant, and Robert Glenn Terrell, appellant pro se. Ian T. Otte, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
• Judge Panel: Before Schroeder, P.J., Malone, J., and McAnany, S.J.
• Case Date: April 09, 2021
• Court: Kansas Court of Appeals

State of Kansas, Appellee,

v.

Robert Glenn Terrell, Appellant.

No. 122, 680

Court of Appeals of Kansas

April 9, 2021

SYLLABUS BY THE COURT

1. Appellate courts exercise unlimited review on whether a sentence is illegal within the meaning of K.S.A. 22-3504 because it is a question of law.

2. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words.

3. Courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation.

4. Appellate courts presume the Legislature acted with full knowledge of existing law and statutory subject matter, including judicial opinions interpreting Kansas statutes.

5. The reasonable and sensible application of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq., is for post-KSGA Kansas convictions to be classified based on the classification in effect at the time of the prior conviction.

Appeal from Cowley District Court; Nicholas M. St. Peter, judge.

Kristen B. Patty, of Wichita, for appellant, and Robert Glenn Terrell, appellant pro se.

Ian T. Otte, deputy county attorney, and Derek Schmidt, attorney general, for appellee.

Before Schroeder, P.J., Malone, J., and McAnany, S.J.

SCHROEDER, J.

The sentencing scheme in Kansas is controlled by the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq. Robert Glenn Terrell appeals the district court's denial of his motion to correct an illegal sentence, claiming the district court erred by reclassifying his 2004 conviction for failure to register under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq.-defined in 2004 as a nonperson felony under the KSGA-from a nonperson felony to a person felony. After careful review of the record and the KSGA, we find the district court erred in reclassifying Terrell's 2004 KORA violation conviction from a nonperson felony to a person felony for purposes of determining his criminal history. Therefore, we vacate the sentence and remand with directions.

Facts

In November 2018, Terrell pled guilty to one count of aggravated escape from custody. Prior to sentencing, Terrell filed a motion for downward durational departure. At sentencing, the district court reclassified his 2004 KORA violation conviction from a nonperson felony to a person felony based on the statutory change in 2016 which made a KORA violation a person felony if the crime requiring the offender to register was a person felony. Terrell was required to register based on a 2002 rape conviction-a person felony-so the district court scored his 2004 KORA violation conviction as a person felony. This scoring resulted in Terrell's criminal history score moving from C to B.

Terrell objected to the inclusion of his 2004 conviction for violation of KORA in his criminal history score as a person felony. Terrell did not dispute the existence of the conviction; rather, he argued it should be scored as a nonperson felony because at the time of the prior conviction it was classified as such. See K.S.A. 2004 Supp. 22-4903. The district court overruled Terrell's objection to his criminal history score but granted his motion for downward durational departure, sentencing him to 40 months' imprisonment with 24 months' postrelease supervision.

Terrell initially filed a notice of appeal but withdrew it. He then filed several motions to correct an illegal sentence, which the district court denied. In denying his motions to correct illegal sentence, the district court held Terrell's 2004 KORA violation conviction was properly scored as a person felony under State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015). Terrell now appeals.

Analysis

Standard of Review

We exercise unlimited review on whether a sentence is illegal within the meaning of K.S.A. 22-3504 because it is a question of law. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). Interpretation of a sentencing statute is likewise a question of law subject to unlimited review. State v. Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018). "'The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.'" State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016). "'An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature's intent.' [Citations omitted." State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016).

"[W]hen construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia, with a view toward reconciling and bringing the provisions into workable harmony if possible. [Citation omitted.]" Keel, 302 Kan. at 573-74.

Courts must construe statutes "to avoid absurd or unreasonable results." State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014). We presume the Legislature acted with full knowledge of existing law and statutory subject matter, including judicial opinions interpreting Kansas statutes. State v. Kershaw, 302 Kan. 772, 782, 359 P.3d 52 (2015); see State v. Quested, 302 Kan. 262, 279, 352 P.3d 553 (2015) (acquiescence to appellate decisions may indicate legislative intent). We further presume the Legislature does not intend to enact meaningless legislation; therefore, by amending statutory language, the Legislature intends to alter or amend existing law. See State v. Snellings, 294 Kan. 149, 157, 273 P.3d 739 (2012).

As a general rule, criminal statutes are strictly construed in favor of the accused. That rule is constrained, however, by the rule that interpretation of a statute must be reasonable and sensible to effect the legislative design and intent of the law. See Barlow, 303 Kan. at 813. The rule of lenity arises only when there is any reasonable doubt of the statute's meaning. State v. Williams, 303 Kan. 750, 760-61, 368 P.3d 1065 (2016).

Discussion

Terrell argues the district court erred in scoring his 2004 KORA violation conviction as a person felony. At the time of Terrell's 2004 KORA violation, K.S.A. 2004 Supp. 22-4903 provided: "Any person who is required to register as provided in this act who violates any of the provisions of this act . . . is guilty of a severity level 10, nonperson felony." The statute was amended in 2016 to read that a KORA violation "shall be designated as a person or nonperson crime in accordance with the designation assigned to the underlying crime for which the offender is required to be registered under the Kansas offender...