Opinion
No. 107,592.
2012-11-9
STATE of Kansas, Appellee, v. Justin G. HASKELL, Appellant.
Appeal from Douglas District Court; Michael J. Malone, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, James Floyd, legal intern, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Michael J. Malone, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, James Floyd, legal intern, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
In June 2011, Justin Haskell pled no contest to attempted failure to register as a sex offender. Haskell's presentence-investigation report revealed three prior convictions for attempted indecent liberties with a child. The district court included two of his prior convictions in his criminal-history score. Haskell was sentenced to 24 months of probation with an underlying prison sentence of 29 months.
On appeal, Haskell argues that the district court erred by using any of his prior convictions in his criminal-history score. He argues that all three prior convictions were already counted as elements of his duty to register as a sex offender, so they shouldn't have been counted to determine his criminal history. But our court has held that only one prior conviction of a sexually violent crime is necessary to categorize a defendant as a sex offender and trigger the registration requirement under the plain language of the Kansas Offender Registration Act. See State v. Deist, 44 Kan.App.2d 655, 656–60, 239 P.3d 896 (2010). Accordingly, since one conviction alone is an element of the Haskell's present crime of attempted failure to register, all other prior convictions must be included in his criminal history.
The district court was correct to use one of Haskell's three prior convictions as an element of the present crime of attempted failure to register and was correct to use the other two prior convictions in his criminal-history score. We therefore affirm its judgment.
Factual Background
In June 2011, Haskell pled no contest to one count of attempted failure to register as a sex offender earlier in the year. The district court accepted his plea and found him guilty. Haskell had three prior convictions for attempted indecent liberties with a child. The district court counted two of Haskell's three prior convictions in his criminal-history score; this gave Haskell the second most severe score, B, which applies to someone who has had committed two prior person felonies.
The district court granted Haskell's motion for dispositional departure—granting probation instead of prison—but denied his motion for a durational departure to a shorter prison sentence than called for under the sentencing guidelines. The district court sentenced Haskell to 24 months of probation, with an underlying prison sentence of 29 months that will be served if he doesn't successfully complete his probationary period.
Haskell has appealed his sentence to this court, contending that he should not have received a criminal-history score of B.
Analysis
The District Court Correctly Calculated Haskell's Criminal–History Score.
Haskell argues that the district court erred in scoring two prior convictions for attempted indecent liberties with a child in his criminal-history score. Specifically, he argues that the sentencing guidelines provide that his prior convictions shouldn't be scored in his criminal history because they were an element of the crime of failing to register itself. The State contends that this court's precedent from Deist controls and that counting two of Haskell's prior convictions was proper.
This court may review a claim that the sentencing court erred in either including or excluding a prior conviction in a criminal-history score. K.S.A. 21–4721(e)(2) (now recodified as K.S .A.2011 Supp. 21–6820[e] [2] ). An appellate court has unlimited review in the interpretation of the sentencing guidelines. State v. Hyche, 293 Kan. 602, 603, 265 P.3d 1172(2011).
Haskell's argument was rejected by this court in Deist, where we held that the second of two prior convictions of aggravated indecent liberties with a child was available for use in calculating the defendant's criminal-history score. 44 Kan.App.2d at 660. Our court concluded that the Kansas Offender Registration Act only requires one prior conviction to trigger the registration requirement. Thus, any other convictions beyond the one prior conviction necessary to trigger the duty to register are available for calculating criminal 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-theft convictions lead to an enhanced sentence, the court held that one conviction beyond the three necessary to enhance the severity level of the defendant's new theft conviction could be used in determining his criminal history. 47 Kan.App.2d at 105–08.
Here, Haskell had three prior convictions for attempted indecent liberties with a child. Haskell argued that all three convictions were an element of his duty to register, but the district court counted two of the three convictions in finding that Haskell had a criminal-history score of B. On appeal, Haskell argues that Deist was wrongly decided because all three of Haskell's prior convictions required him to register, so they should be “treated as one unit.”
The reasoning in Deist is sound. The sentencing guidelines generally provide that all prior convictions be scored except those that specifically enhance the punishment for or are elements of the crime itself:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” K.S.A.2010 Supp. 21–4710(d)(11) (recodified as K.S.A.2011 Supp. 21–6810[d][9] ).
In Deist, our court held that only one prior conviction was necessary to categorize a defendant as an offender and trigger the registration requirement under the plain language of the Kansas Offender Registration Act. Deist, 44 Kan.App.2d at 660. That Act defines a “sex offender” as any person who is convicted of any sexually violent crime listed in subsection (c) of the same statute. K.S.A.2010 Supp. 22–4902(b). Attempted indecent liberties with a child is considered a sexually violent crime under the statute. K.S .A.2010 Supp. 22–4902(c)(2), (15). The Deist court emphasized the word “crime” in K.S.A. 22–4902(b) to conclude that only one prior conviction was sufficient to create the duty to register as a sex offender. Deist, 44 Kan.App.2d at 659–60. This conclusion is consistent with another decision of this court that counted two prior convictions for the purpose of classifying a defendant as a persistent sex offender and counted five other prior convictions in his criminal history. See State v. Armstrong, 29 Kan.App.2d 822, 823–25, 33 P.3d 246,rev. denied 272 Kan. 1420 (2001).
Here, Haskell has presented no compelling argument that Deist was wrongly decided. We conclude that the district court correctly calculated Haskell's criminal-history score.
We therefore affirm the district court's judgment.