State v. Williams
| Decision Date | 02 March 2012 |
| Docket Number | No. 104,909.,104,909. |
| Citation | 47 Kan.App.2d 102,272 P.3d 1282 |
| Parties | STATE of Kansas, Appellee, v. Brian WILLIAMS, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
When a defendant being sentenced for felony theft has three or more prior felony-theft convictions, only three of the convictions are required to trigger enhancement of the defendant's sentence to presumptive imprisonment under K.S.A. 2009 Supp. 21–4704(p). Any other past felony-theft convictions are properly scored in the defendant's criminal-history score.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Darrell E. Miller, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., MARQUARDT and LEBEN, JJ.
The sentence for theft may be enhanced to presumed prison—rather than probation—if the defendant has three or more prior felony-theft convictions. But a prior conviction used to enhance a penalty can't be counted in the criminal-history score, which affects the length of imprisonment.
When the district court sentenced Brian Williams for theft, Williams had four prior felony-theft convictions. The district court used three of the convictions for the sentence enhancement to prison and counted the fourth in determining Williams' criminal-history score. Williams argues that because the statute providing for sentence enhancement applies when there are “three or more” convictions, all of his past convictions are used to enhance his penalty and thus can't be counted for criminal-history purposes. Essentially, he argues that all of the convictions have been “used up” in enhancing his penalty.
But similar Kansas sentencing statutes have been interpreted to “use up” in sentence enhancement only the minimum number of past convictions required to trigger the enhancement, while counting any remaining past convictions in the defendant's criminal history. We find no meaningful difference between the statutes at issue in these past cases and the ones at issue in Williams' case, and we therefore conclude that the district court correctly sentenced Williams.
With that overview of the legal issues, let's briefly review the specific facts and rulings that have brought the case to our court. Williams pled guilty in 2010 to 15 counts of theft by deception, and he had four prior theft convictions. The presentence-investigation report allocated three of the prior convictions for the purpose of enhancing Williams' penalty from presumed probation to presumed imprisonment. The report allocated the fourth prior theft conviction to Williams' criminal-history score. With one prior nonperson felony, his criminal-history score was G (one prior nonperson felony) rather than the lowest score, I (no prior felonies and no more than one prior misdemeanor). The district court accepted the method for considering the prior convictions suggested by the presentence-investigation report, which calculated Williams' criminal-history score as G for the base-offense sentence.
This change in the criminal-history score from I to G increased Williams' presumptive prison term for the base offense from one ranging from 5 months to 7 months to one ranging from 7 months to 9 months. The Kansas sentencing statutes use the defendant's full criminal history when calculating the base sentence. (Here, since all of Williams' crimes were the same, the base sentence is simply applied to one of the 15 theft convictions.) Then the other crimes of conviction are sentenced based on a criminal-history score of I. The judge has the discretion to make the sentences concurrent, in which case they all run at the same time, or consecutive, in which they are added together. K.S.A. 21–4720(b).
On July 7, 2010, the district court sentenced Williams to 18 months in prison. That was the maximum allowable sentence, even with consecutive sentences, because his sentence could be no longer than double the sentence on the base offense, which was 9 months. See K.S.A. 21–4720(b)(4). Williams appealed, challenging the length of his sentence based on the way the district court used the past convictions both to enhance his sentence and, for the fourth prior conviction, to affect his criminal-history score.
We turn next to the statutes at issue. We will discuss the statutes as they stood at the time Williams committed his offenses, February and March 2010. See State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004) (). As part of the recodification of the Kansas criminal code, effective July 1, 2011, these statutes have since been repealed and reenacted under new numbers, but the substantive provisions have not been changed.
Two statutes are directly involved here, K.S.A. 2009 Supp. 21–4704(p) and K.S.A. 21–4710(d). K.S.A. 2009 Supp. 21–4704(p) provides that the sentence for felony theft shall be presumed imprisonment when the person “has any combination of three or more prior felony convictions” for theft. K.S.A. 21–4710(d)(11) provides that all prior convictions will be considered and scored for criminal-history purposes except for offenses that “enhance the severity level or applicable penalties” for, or “are elements of,” the present crime of conviction.
The question before us is one of statutory interpretation, so we must review the matter independently, without any required deference to the district court. See State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011). As a general rule, criminal statutes are interpreted strictly in favor of the defendant, meaning that we construe any ambiguity in the statute's language in the defendant's favor. But this rule of strict construction is subject to the qualification that our ultimate interpretation of the statute must be reasonable so as to carry out the intent of the legislature. See State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010).
Williams was convicted of felony theft in violation of K.S.A. 21–3701. At the time of his offenses, K.S.A. 2009 Supp. 21–4704(p) provided that “[t]he sentence for a felony violation of K.S.A. 21–3701, ... when such person ... has any combination of three or more prior felony convictions for [theft], ... shall be presumed imprisonment....” Meanwhile, K.S.A. 21–4710(d)(11) provided rules for considering prior convictions for the purpose of criminal-history scores, precluding the use in scoring of convictions that have been already used to enhance the sentence but otherwise requiring the consideration of “all” past convictions for scoring purposes:
In addition, K.S.A. 21–4710(d)(2) separately provided that “[a]ll prior adult felony convictions, including expungements, will be considered and scored.”
A similar question regarding the consideration of past convictions has been answered regarding the Kansas statutes for sentencing persistent sex offenders. Sentences are enhanced—by doubling—when a defendant being sentenced for a sex crime with presumptive imprisonment has “ at least one [prior] conviction for a sexually violent crime.” (Emphasis added.) See 2009 Supp. K.S.A. 21–4704(j). The Kansas Supreme Court addressed the interpretation of K.S.A. 21–4704(j), along with K.S.A. 21–4710(d)(11), in State v. Zabrinas, 271 Kan. 422, 442–44, 24 P.3d 77 (2001). The Zabrinas court concluded that even though K.S.A. 21–4710(d)(11), calls for scoring all crimes, it also “prevents ... the counting of a prior conviction that was used to double the sentence.” 271 Kan. at 443, 24 P.3d 77. The defendant in Zabrinas had two prior, qualifying sex offenses, and the court ordered resentencing counting only one of the sentences toward the criminal-history score. Although the court did not make this point explicitly, it apparently considered only one of the prior convictions to have been used to double the sentence, and the statutory language at issue (“at least one conviction”) provided for sentence enhancement whether the defendant had one, two, or many prior qualifying convictions. 271 Kan. at 442–44, 24 P.3d 77.
Our court has rulings to the same effect in State v. Armstrong, 29 Kan.App.2d 822, 33 P.3d 246, rev. denied 272 Kan. 1420 (2001), and State v. Deist, 44 Kan.App.2d 655, 239 P.3d 896 (2010). In Armstrong, a defendant with seven prior sex-offense convictions argued that the district court couldn't use any of the seven prior convictions to increase his criminal history score because his prior convictions had been used to classify him as a persistent sex offender. This court affirmed the district court's use of six of the prior convictions in calculating the criminal-history score:
29 Kan.App.2d at 825, 33 P.3d 246.
Deist followed the reasoning of Armstrong, using one prior conviction to trigger the duty to register as a sex offender and the other in calculating the defendant's criminal-history score. Deist, 44...
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...history. Deist, 44 Kan.App.2d at 660. The rationale of Deist was recently adopted by another panel of this court in State v. Williams, 47 Kan.App.2d 102, 272 P.3d 1282 (2012), a felony-theft case in which a defendant had four prior felony-theft convictions. Since three or more prior felony-......