Opinion
Nos. 108,633 108,634.
2013-12-27
STATE of Kansas, Appellant, v. Leslie BAUGH, Appellee.
Appeal from Reno District Court; Trish Rose, Judge. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
Before MALONE, C.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State appeals the district court's sentencing decisions in two cases involving Leslie Baugh's convictions under the Kansas Offender Registration Act (KORA), K.S.A.2011 Supp. 22–4901 et seq . In 11CR543, the State claims the district court erred in classifying Baugh's conviction as a severity level 6 person felony and in assigning a criminal history score of E. We disagree. In 11CR896, the State claims the district court erred in classifying Baugh's conviction as a severity level 6 person felony. We agree with the State's claim in 11CR896. Thus, we affirm Baugh's sentence in 11CR543, and we vacate the sentence in 11CR896 and remand for resentencing.
Facts
In 11CR543, the State charged Baugh with failing to register as a drug offender for the month of June 2011 in violation of the KORA and identified the violation as a severity level 5 person felony. A few months later, the State charged Baugh in 11CR896 with failing to register as a drug offender in violation of K.S.A. 22–4903, a severity level 5 person felony. The State later amended the complaint in 11CR896 to charge multiple counts of failing to register as a drug offender in violation of K.S.A. 22–4903, each count being a severity level 5 person felony.
Baugh negotiated a plea agreement with the State. In exchange for entering pleas of guilty or no contest to the sole count of 11CR543 and the first count of the amended complaint in 11CR896, Baugh received the State's promise to dismiss the remaining counts in 11CR896. The written plea agreements as filed indicated that both remaining charges were classified as severity level 6 person felonies, rather than severity level 5 person felonies. But the written plea agreement in 11CR896 contained a handwritten notation initialed by the parties stating that “severity level to be argued at sentencing.”
At the plea hearing on May 11, 2012, the district court accepted Baugh's guilty plea in both cases. The district court considered counsel's arguments regarding the proper severity level classification for each offense but ultimately took the matter under advisement. Baugh later filed motions for a downward dispositional sentencing departure in both cases. Baugh also filed objections to her criminal history scores.
At the initial sentencing hearing on July 6, 2012, Baugh argued that failure to register as a drug offender in 11CR543 should be classified as a severity level 6 offense because the offense occurred after the effective date of the legislative amendments reclassifying the offense as a severity level 6 person felony. Baugh also argued that if the conviction in 11CR543 was used to enhance the conviction in 11CR896, the prior conviction could not also be used to determine her criminal history score in 11CR896. The State conceded Baugh's argument that her criminal history score in 11CR896 should be E based upon the penalty enhancement. The district court declined to rule on the issues and continued the sentencing hearing.
On July 27, 2012, the district court ruled that Baugh's failure to report in June 2011 became a criminal offense on July 1, 2011, and, therefore, the 2011 amendments to the statute applied. The district court determined that Baugh's convictions in both cases should be classified as severity level 6 person felonies. In response to Baugh's argument that her criminal history score in 11CR896 should be E, the State conceded the point. The district court then assigned a criminal history score of E for both cases. The district court imposed a 30–month prison term in both cases and granted Baugh's request for a dispositional departure to probation. The State timely filed a notice of appeal in each case. This court consolidated the two appeals.
Severity Level of Conviction in 11CR543
The State first claims the district court erred in classifying Baugh's conviction in 11CR543 as a severity level 6 person felony. Because K.S.A. 22–4903 was amended effective July 1, 2011, to change the severity level of an offense for failing to register as a drug offender, the argument hinges upon the date Baugh's offense was committed. The State contends that Baugh was required to register in June 2011 and, therefore, the offense occurred in June 2011 prior to the effective date of the statutory amendment. While Baugh raises a different argument on appeal, she argued at trial that the offense was not committed until she failed to register during the month of June, i.e., the omission became an offense as of July 1, 2011. Thus, Baugh argued in district court that her conviction in 11CR543 should be classified as severity level 6 rather than severity level 5. The district court agreed with Baugh.
Generally, a determination of the date on which an offense is committed is a question of fact. But when the material facts are undisputed and the question is resolved on the legal effect of those facts, the question is one of law, subject to unlimited appellate review. See Chesbro v. Board of Douglas County Comm'rs, 39 Kan.App.2d 954, 960, 186 P.3d 829,rev. denied 286 Kan, 1176 (2008) (noting that an issue requiring fact resolution may be determined as a question of law when the facts are undisputed).
Here, the State charged Baugh in 11CR543 with failing to register as a drug offender for the month of June 2011, and Baugh pled guilty to that crime. Even though the duty to register arose during the month of June 2011, Baugh did not fail in this duty until June 30, 2011, had passed without her compliance. Baugh's crime, which essentially is a crime of omission, did not occur until July 1, 2011. Stated differently, the State could not have charged Baugh with any crime until July 1, 2011. As such, the penalty provision in effect at the time the offense was committed was K.S.A.2011 Supp. 22–4903, making Baugh's crime upon a first conviction a severity level 6 person felony. See K.S.A.2011 Supp. 22–4903(c)(1)(A). Therefore, the district court did not err in classifying Baugh's conviction in 11CR543 as a severity level 6 person felony.
Criminal History Score IN 11CR543
Next, the State claims the district court erred in assigning Baugh a criminal history score of E in 11CR543. The State argues that the conviction in 11CR896 existed at the time Baugh was sentenced in 11CR543 and should have been included in her criminal history score, which would have resulted in a criminal history score of C. Baugh concedes that her conviction in 11CR896 could have been used to calculate her criminal history score in 11CR543, but Baugh argues that the State has waived the error because the State did not contest the criminal history score of E.
An appellate court has jurisdiction to consider any challenge to a criminal history calculation. See K.S.A.2012 Supp. 21–6820(e)(3); State v. Goeller, 276 Kan. 578, 584–85, 77 P.3d 1272 (2003). Nevertheless, where a party invites error in the district court by stipulating to criminal history, that party is barred from seeking redress for the invited error on appeal. Goeller, 276 Kan. at 585 (noting that a party that invites error by stipulating to criminal history cannot request correction of the sentence under K.S.A. 22–3504).
At the initial sentencing hearing on July 6, 2012, Reno County Deputy District Attorney Thomas Stanton argued that the criminal history score in 11CR543 should be C and the criminal history score in 11CR896 should be E. The criminal history score in 11CR896 was reduced only because the person felony conviction in 11CR543 would be used to enhance the severity level for the conviction in 11CR896 and could not also be used in the criminal history calculation for that offense. At the end of the hearing, the district court reserved its ruling and continued the sentencing hearing.
At the sentencing hearing on July 27, 2012, defense counsel argued that both cases should be a criminal history score of E. The judge then asked the prosecutor whether he agreed with defense counsel. The prosecutor stated: “I do, Your Honor, to the extent that the Court has summarized Mr. Stanton's argument and review of the criminal history indicates the defendant without using the conviction in 11CR543 to enhance 11CR896, the criminal history score is E.” While not entirely clear, this statement could be attempting to reference Stanton's argument at the earlier hearing that the criminal history score in 11CR543 should be C and the criminal history score in 11CR896 should be E. But, after the prosecutor's statement, the district judge stated:
“THE COURT: All right. So lets discuss 11CR543 initially. We've established the criminal history score is E. This is a sentencing for failure to register one count. May I have the State's recommendation on that?”
The State offered no correction to the district court's conclusion that the criminal history score in 11CR543 was E instead of C. Moreover, the State made a sentencing recommendation to the district court in 11CR543 based only on criminal history category E. Under these circumstances, the State led the district court into error by conceding the criminal history score of E proposed by Baugh. Thus, we will not address the State's claimed error on appeal.
Severity Level of Conviction in 11CR896
Finally, the State claims the district court erred in classifying Baugh's conviction in 11CR896 as a severity level 6 person felony. The State argues that Baugh's second conviction of failing to register as a drug offender in 11CR896 constituted a severity level 5 person felony. In the alternative, the State argues that if the conviction in 11CR543 does not enhance the penalty for the conviction in 11CR896, the conviction in 11CR543 should have been scored in Baugh's criminal history in 11CR896, which would make her criminal history score in that case a C rather than E.
Baugh raises three arguments in defense of the district court's severity level classification in 11CR896. First, Baugh contends that the State acquiesced in the district court's classification of the offense as a severity level 6 person felony. Second, Baugh argues that the State's failure to charge the registration violation as a second offense would constitute a due process violation if the district court sentenced Baugh as a second-time offender with the attendant penalty enhancement. Third, Baugh claims that K.S.A.2011 Supp. 22–4903(c) is a self-contained habitual criminal act and, accordingly, a prior conviction can only be used to enhance the penalty for a subsequent conviction when the prior conviction occurred before the offense supporting the subsequent conviction. All of these arguments involve questions of law over which an appellate court has unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011) (interpretation of statute); State v.. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008) (due process); Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006) (acquiescence).
Acquiescence
Baugh asserts that the State acquiesced in the district court's classification of the offense in 11CR896 as a severity level 6 person felony because the State did not object to the classification at sentencing. Acquiescence in a judgment bars appellate review of a challenge to that judgment, but acquiescence occurs only when a party voluntarily complies with a judgment by assuming the burdens or accepting the benefits of the judgment. Alliance Mortgage Co., 281 Kan. at 1271. The doctrine of acquiescence has limited applicability in criminal cases. See State v. Hills, 264 Kan. 437, 440, 957 P.2d 496 (1998).
K.S.A.2012 Supp. 21–6820(e)(3) grants an appellate court jurisdiction to consider a challenge to the severity level of a crime, even if the issue is raised for the first time on appeal. See State v. Fanning, 281 Kan. 1176, 1178, 135 P.3d 1067 (2006). Thus, the State's failure to object to the severity level classification at sentencing does not present a jurisdictional bar for this court to consider the issue on appeal. Moreover, even if acquiescence were applicable in the context of an illegal sentence, it is difficult to perceive any benefit the State has received based on the district court's judgment. Baugh's plea was not dependent upon her conviction of a severity level 6 person felony, and the plea agreement specifically reserved the classification issue for argument at the sentencing hearing. Thus, the State's argument on appeal is not barred under the doctrine of acquiescence.
Due Process
Baugh also argues that the State's failure to charge the registration violation as a second offense would constitute a due process violation if the district court sentenced Baugh as a second-time offender with the attendant penalty enhancement. To support this argument, Baugh relies on State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996), clarified by State v. Larson, 265 Kan. 160, 163–64, 958 P.2d 1154 (1998). In Masterson, the defendant was charged with driving under the influence of alcohol (DUI), and the complaint designated that the offense constituted a class A or B misdemeanor or a severity level 9 felony, which would be determined at sentencing. The Kansas Supreme Court concluded that the sentencing enhancement based upon the number of prior DUI convictions was not an element of the offense that was required to be presented to the jury, but the Supreme Court determined that a criminal defendant facing a DUI charge was entitled to notice in the complaint of the severity of the penalty imposed upon a conviction. 261 Kan. at 162–64.
Here, in 11CR896, the State charged Baugh with failing to register as a drug offender in violation of K.S.A. 22–4903, a severity level 5 person felony. The amended complaint similarly advised Baugh that she was being charged with a severity level 5 person felony. Thus, although Baugh was not specifically charged as a second-time offender, she clearly was aware from the complaint that the State would seek a penalty consistent with a severity level 5 person felony. At sentencing, Baugh appeared to concede the penalty enhancement in 11CR896 based on a second offense and argued for a corresponding reduction of the criminal history score. Unlike the defendant in Masterson, Baugh was provided clear notice in the complaint of the potential penalty she faced upon a conviction in 11CR896. Thus, Baugh's due process rights would not have been violated by the district court's imposition of a severity level 5 person felony for Baugh's conviction in 11CR896, and the State's argument on appeal is not barred by due process considerations.
Interpretation of KS.A.2011 Supp 22–4903
Finally, Baugh claims that K.S.A.2011 Supp. 22–4903(c) is a self-contained habitual criminal act and, accordingly, a prior conviction can only be used to enhance the penalty for a subsequent conviction when the prior conviction occurred before the offense supporting the subsequent conviction. Because the State did not obtain a conviction in 11CR543 before Baugh committed the KORA violation supporting her conviction in 11CR896, Baugh argues that the district court properly applied the penalty for a first time conviction in 11CR896.
K.S.A.2011 Supp. 22–4903 provides as follows:
“(a) Violation of the Kansas offender registration act is the failure by an offender ... to comply with any and all provisions of such act.... Any violation of the Kansas offender registration act which continues for more than 30 consecutive days shall, upon the 31st consecutive day, constitute a new and separate offense, and shall continue to constitute a new and separate offense every 30 days thereafter for as long as the violation continues.
“(c)(1) Violation of the Kansas offender registration act is:
(A) Upon a first conviction, a severity level 6, person felony;
(B) Upon a second conviction, a severity level 5, person felony. ...” (Emphasis added.)
Baugh cites State v. Wilson, 6 Kan.App.2d 302, 627 P.2d 1185,aff'd230 Kan. 287, 634 P.2d 1078 (1981), to support her argument that K.S.A.2011 Supp. 22–4903(c) constitutes a self-contained habitual criminal act. In Wilson, this court construed the Habitual Criminal Act, K.S.A.1980 Supp. 21–4504, to permit enhancement based on previous convictions only when each previous conviction occurred before the conduct of the succeeding conviction was committed. 6 Kan.App.2d at 306. Baugh argues that the same reasoning should apply in construing K.S.A.2011 Supp. 22–4903(c).
The reasoning in Wilson was based upon the language of K.S.A.1980 Supp. 21–4504 which permitted enhancement based on previous convictions only when each previous conviction occurred before the conduct of the succeeding conviction was committed. Significantly, K.S.A.2011 Supp. 22–4903(c) does not require any particular sequence between a prior conviction and the commission of a new KORA violation. Instead, the statute requires only sequential convictions. See K.S.A.2011 Supp. 22–4903(c) (prescribing a severity level 6 person felony for a first conviction, a severity level 5 person felony for a second conviction, and so on).
Here, because K.S.A.2011 Supp. 22–4903(c) contains no explicit requirement that the prior conviction be obtained before the commission of the subsequent KORA violation, Baugh's conviction in 11CR543 constituted a first conviction of failing to register as a drug offender and her conviction in 11CR896 constituted a second conviction. By the plain language of K.S.A.2011 Supp. 22–4903(c)(1)(B), this second conviction under KORA should have been classified as a severity level 5 person felony, and the district court erred in classifying Baugh's conviction in 11CR896 as a severity level 6 person felony. Baugh's sentence in 11CR896 is vacated, and the case is remanded with directions to classify the conviction as a severity level 5 person felony and to assign a criminal history score of E.
Affirmed in part, vacated in part, and remanded with directions.