State v. Keel

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,096

STATE OF KANSAS,
Appellee,

v.

DANNY KEEL,
Appellant.


SYLLABUS BY THE COURT

1.
Possession of a controlled substance requires specific intent to exercise control
over the substance, with knowledge of the nature of the substance. The possession of a
controlled substance may be immediate and exclusive, jointly held with another, or
constructive as where the drug is kept by the accused in a place to which he or she has
some measure of access and right of control. Proof of the required elements for
possession of a controlled substance may be established by circumstantial evidence.

2.
In order to sustain a conviction in a drug possession case where a defendant does
not have exclusive control of the premises where the drugs are found, the evidence must
establish more than just the defendant's mere presence or access to the drugs. In such a
case, other incriminating circumstances must link the defendant to the drugs.
Incriminating factors include: (1) the defendant's previous sale or use of narcotics; (2)
the defendant's proximity to the area in which the drugs were found; (3) the fact that the
drugs were found in plain view; and (4) the defendant's incriminating statements or
suspicious behavior.

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3.
A defendant's stipulation or failure to object at sentencing to the convictions listed
in his or her presentence investigation report may prevent the defendant from later
challenging the existence of the convictions listed in the report. But a stipulation or lack
of an objection at sentencing will not prevent the defendant from raising a subsequent
challenge under K.S.A. 22-3504(1) regarding the legal effect of his or her prior
convictions (e.g., how those convictions should be classified and counted for the purpose
of determining the defendant's criminal history score).

4.
Whether a prior conviction should be classified as a person or nonperson offense
involves the interpretation of the Kansas Sentencing Guidelines Act. Interpretation of a
statute is a question of law over which appellate courts have unlimited review.

5.
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. While criminal statutes are generally
strictly construed against the State, this principle is subordinate to the rule that judicial
interpretation must be reasonable and sensible to effectuate the legislative design and the
true intent of the law.

6.
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
3



construction or legislative history or other background considerations to construe the
legislature's intent.

7.
When construing statutes to determine legislative intent, appellate courts must
consider various provisions of an act in pari materia with a view of reconciling and
bringing the provisions into workable harmony if possible. Appellate courts also construe
statutes in such a way as to avoid unreasonable results. Appellate courts presume that the
legislature did not intend to enact meaningless or redundant legislation.

8.
Revisiting this court's construction of the Kansas Sentencing Guidelines Act
(KSGA) as a whole persuades a majority that, except as specifically stated otherwise, the
legislature intended for all prior convictions and juvenile adjudications—including
convictions and adjudications occurring before implementation of the KSGA—to be
considered and scored for purposes of determining an offender's criminal history score. In
order to do this, a pre-KSGA conviction and/or adjudication must be classified as either a
person or nonperson offense by comparing the criminal statute under which the prior
offense arose to the comparable post-KSGA criminal statute. The comparable post-
KSGA Kansas criminal statute is the one in effect at the time the current crime of
conviction was committed.

9.
State v. Vandervort, 276 Kan. 164, 72 P.3d 925 (2003), overruled in part by State
v. Dickey, 301 Kan. 1018, Syl. ¶ 4, 350 P.3d 1054 (2015), established that a prior
conviction should be classified as a person or nonperson offense for criminal history
purposes based on the classification in effect for the comparable Kansas offense when the
current crime was committed. Under the Kansas Sentencing Guidelines Act, the
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sentencing range for an offense is determined by the severity level of the current crime of
conviction and the offender's criminal history score—determined by the number of prior
convictions and/or juvenile adjudications and how they are classified (i.e., as either
person or nonperson offenses). Because it is a fundamental rule of sentencing that the
penalty parameters for a crime are established at the time the crime was committed, the
classification of a prior conviction or juvenile adjudication for criminal history purposes
under the KSGA must be based on the classification in effect for the comparable offense
when the current crime of conviction was committed. State v. Williams, 291 Kan. 554,
244 P.3d 667 (2010), established a classification rule at odds with Vandervort's holding
and is thus overruled. Because the holding of State v. Murdock, 299 Kan. 312, 323 P.3d
846 (2014), modified by Supreme Court order September 19, 2014, followed from
Williams, Murdock also is overruled.

Review of the judgment of the Court of Appeals in State v. Keel, No. 106,096, unpublished
opinion filed September 21, 2012. Appeal from McPherson District Court; CARL B ANDERSON, judge.
Opinion filed August 28, 2015. Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and David A. Page, county
attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

ROSEN, J.: Danny Keel was convicted of one count of possession of
methamphetamine and one count of possession of drug paraphernalia. He argued before
the Court of Appeals that the State presented insufficient evidence to show that he had
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constructive possession of the drugs and drug paraphernalia found inside the residence he
shared with his girlfriend. Keel also argued that the jury was improperly instructed on the
definition of drug paraphernalia. The Court of Appeals rejected both arguments and
affirmed his convictions. State v. Keel, No. 106,096, 2012 WL 4373012 (Kan. App.
2012) (unpublished opinion). We granted review on both of these issues.

After review was granted, Keel filed a motion with this court to correct an illegal
sentence. He alleged that this court's recent decision in State v. Murdock, 299 Kan. 312,
319, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014,
(because Kansas did not classify crimes as person or nonperson offenses prior to July 1,
1993—the date the Kansas Sentencing Guidelines Act [KSGA], K.S.A. 21-4701 et seq.,
went into effect—all out-of-state convictions occurring before that date must be classified
as nonperson offenses for criminal history purposes), meant the district court erred in
classifying his January 1993 Kansas convictions for attempted aggravated robbery and
aggravated robbery as person felonies, resulting in a criminal history score of B. Keel
argued that the legal reasoning of Murdock dictated that his convictions be classified as
nonperson felonies. Keel noted that classifying his two 1993 convictions as nonperson
felonies would result in him having a criminal history score of E and, in turn, he would
receive a shorter sentence for his current crimes of conviction. We ordered supplemental
briefing from the parties on this issue.

While this appeal was pending before the court, the legislature passed House Bill
2053, L. 2015, ch. 5, secs. 1-5 (effective April 2, 2015), in response to the Murdock
decision. The bill added explicit language to K.S.A. 2014 Supp. 21-6810 (formerly
K.S.A. 21-4710) and K.S.A. 2014 Supp. 21-6811 (formerly K.S.A. 21-4711) stating that,
for criminal history purposes, a conviction or juvenile adjudication for an offense
committed prior to July 1, 1993, shall be scored as a person or nonperson crime based on
the classification in effect for the comparable offense under the Kansas Criminal Code
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when the current crime of conviction was committed. The legislature also stated its
explicit intention that these amendments applied retroactively. L. 2015, ch. 5, secs. 1 and
2. We ordered supplemental briefing from the parties on whether the amendments could
be properly applied to the classification issue raised in this case.

We conclude that the State presented sufficient evidence to show that Keel
possessed both the methamphetamine and drug paraphernalia found inside his home. We
further conclude that the jury instruction on paraphernalia was not erroneous and did not
deprive Keel of a fair trial. Thus we affirm Keel's convictions. Finally, we conclude that
Keel, pursuant to K.S.A. 22-3504(1), can raise a challenge to the classification of his
prior convictions for the first time on appeal. But we reject his argument contending that
his pre-KSGA convictions must be classified as nonperson offenses for criminal history
purposes.

Revisiting our construction of the KSGA as a whole now persuades a majority of
this court that the legislature, in enacting the sentencing guidelines, contemplated that a
pre-KSGA conviction could be classified as a person offense if such a classification was
proper. Further, we conclude that State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010)—
the case Murdock relied on for the rule that a prior crime's classification is determined by
the classification in effect for the comparable Kansas crime when it occurred—was
inconsistent with our prior decision in State v. Vandervort, 276 Kan. 164, 72 P.3d 925
(2003), overruled in part by State v. Dickey, 301 Kan. 1018, Syl. ¶ 4, 350 P.3d 1054
(2015). Vandervort, a case involving prior convictions from Virginia, established that a
prior crime's classification is determined based on the classification in effect for the
comparable Kansas offense at the time the current crime of conviction was committed.

These conclusions lead us to hold today that Keel's 1993 Kansas convictions for
attempted aggravated robbery and aggravated robbery must be classified as person
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offenses based on the classification in effect for those crimes when Keel committed his
current crimes of conviction. Because the district court classified Keel's prior convictions
as person offenses, Keel was assigned a correct criminal history score and, in turn,
received a legal sentence under the sentencing guidelines. Thus we affirm Keel's
sentence.

FACTS

On May 14, 2010, officers with the Moundridge Police Department and the
McPherson County Sheriff's Department executed a search warrant on a house located in
Moundridge where officers believed Keel resided.

When officers knocked on the door of the residence, Shayna Wulf, Keel's
girlfriend, answered the door. When asked whether Keel was there, Wulf said that he was
not and that she did not know when he would return. Despite Wulf's answer, the officers
proceeded to search the house for Keel. They eventually found him inside a hidden room
near the kitchen. The doorway to the room could not be seen from inside the residence
because it was covered by a set of bookshelves; the bookshelves were fastened with a
hinge and could be opened and closed. After kicking in an outside door, officers
discovered Keel lying on the floor of the hidden room. Officers also discovered a
surveillance system consisting of a camera and a monitor inside the room.

During the search of the house, the officers discovered drugs and suspected drug
paraphernalia. The officers found a glass pipe containing residue on a shelf in the room
where Keel was discovered; the pipe subsequently tested positive for methamphetamine.
Officers also seized: (1) a small baggie lying in plain view on a desk near the hidden
room containing a white crystal substance that later tested positive for methamphetamine;
(2) a black plastic bong in a closet located under the stairway leading upstairs; and (3) a
8



makeup bag in an upstairs bedroom that contained a large glass pipe with black residue
that later tested positive for tetrahydrocannabinol and a baggie containing a white
granular substance that later tested positive for methamphetamine.

The officers arrested Keel and Wulf. At the time of her arrest, Wulf admitted that
the makeup bag belonged to her but claimed that the methamphetamine found inside it
did not, stating that she would take responsibility for the "smoke" but not the "dope."
Wulf later confirmed that "smoke" was a reference to marijuana and "dope" was a
reference to methamphetamine.

Keel was charged with one count each of possession of cocaine, possession of
methamphetamine, and possession of drug paraphernalia. The cocaine charge was
dismissed prior to trial.

At trial, Wulf testified on Keel's behalf. Contrary to her prior statement, Wulf
testified that all the drugs and drug paraphernalia found in the residence belonged to her
and that Keel had no knowledge of or control over any of the items. Wulf explained to
the jury that she had been afraid at the time of her arrest to admit that all the contraband,
including the methamphetamine, belonged to her because she "didn't want to take a
charge for something so big." Notably, Wulf testified that the glass pipe discovered on
the shelf in the room where Keel was discovered was used to smoke methamphetamine
and the black plastic bong found in closet underneath the stairway and the large glass
pipe found in the makeup bag upstairs were both used to smoke marijuana.

Despite Wulf's testimony, the jury found Keel guilty of possession of
methamphetamine and possession of drug paraphernalia.

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Prior to Keel's sentencing, a presentence investigation (PSI) report was prepared
showing that on January 5, 1993 (before the enactment of the KSGA on July 1, 1993),
Keel was convicted of attempted aggravated robbery and aggravated robbery. Both of
these convictions were classified as person felonies, resulting in Keel having a criminal
history score of B. See K.S.A. 21-4709.

At sentencing, Keel did not raise an objection to his criminal history score and
personally stipulated to the existence of the convictions listed in the criminal history
worksheet attached to the PSI report. The district court sentenced Keel to concurrent
sentences of 34 months' imprisonment for possession of methamphetamine and 1 year in
jail for possession of drug paraphernalia.

More facts will be stated as they become pertinent to the issues discussed below.

SUFFICIENCY OF THE EVIDENCE

Before the Court of Appeals, Keel challenged the sufficiency of the evidence
supporting his convictions, claiming that the State failed to prove he had knowledge of or
intended to possess the drugs and drug paraphernalia found inside the house he shared
with Wulf.

Standard of Review

When the sufficiency of the evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt. State v.
Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). An appellate court does not reweigh
evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v.
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McCaslin, 291 Kan. 697, Syl. ¶ 8, 245 P.3d 1030 (2011), overruled on other grounds by
State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014). Furthermore, this court has
recognized that there is no distinction between direct and circumstantial evidence in
terms of probative value. State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). "A
conviction of even the gravest offense can be based entirely on circumstantial evidence
and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury
has the right to make the inference." McCaslin, 291 Kan. 697, Syl. ¶ 9.

Analysis

Keel was charged with possession of methamphetamine and possession of drug
paraphernalia. Kansas law provides that "[i]t shall be unlawful for any person to possess
any opiates, opium or narcotic drugs." K.S.A. 2009 Supp. 21-36a06(a). Similarly, K.S.A.
2009 Supp. 21-36a09(b)(2) prohibits the possession of drug paraphernalia for personal
use. This court has held that

"possession of a controlled substance requires specific intent to exercise control over the
substance, with knowledge of the nature of the substance. [Citation omitted.] The
possession of a controlled substance may be immediate and exclusive, jointly held with
another, or constructive as where the drug is kept by the accused in a place to which he
has some measure of access and right of control. [Citation omitted.] Proof of the required
elements for possession of a controlled substance may be established by circumstantial
evidence. [Citations omitted.]" State v. Washington, 244 Kan. 652, 654, 772 P.2d 768
(1989).

Keel relies mainly on State v. Cruz, 15 Kan. App. 2d 476, 489, 809 P.2d 1233, rev.
denied 249 Kan. 777 (1991), to support his argument. In Cruz, the Court of Appeals
reversed the defendant's conviction for possession of cocaine with intent to sell, holding
that the evidence presented did not support the conviction. 15 Kan. App. 2d at 492. The
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Cruz court noted that in cases where a defendant does not have exclusive control of the
premises upon which drugs are found, "more than mere presence or access to the drugs
has been required to sustain a conviction." 15 Kan. App. 2d at 489. The court held that in
such cases, other incriminating circumstances must link the defendant to the drugs.
Incriminating factors include the following: (1) the defendant's previous sale or use of
narcotics; (2) the defendant's proximity to the area in which the drugs were found; (3) the
fact that the drugs were found in plain view; and (4) the defendant's incriminating
statements or suspicious behavior. 15 Kan. App. 2d at 489.

Like Keel did before the Court of Appeals, he argues the State failed to come
forward with conclusive evidence of any of the factors listed in Cruz. Specifically, Keel
argues there was no evidence presented to establish his previous involvement in any drug
sale or use, only the glass pipe was found in close proximity to him, just one baggie of
methamphetamine was found in plain view, and the only suspicious behavior was Wulf
telling the officers that Keel was not home. In addition, Keel argues there was evidence
presented at trial that should have prompted reasonable doubt in the minds of the jury:
Wulf's testimony at trial that none of the drugs or paraphernalia belonged to Keel and the
State's failure to test any of the drugs or paraphernalia for fingerprints.

The Court of Appeals rejected Keel's argument, reasoning that

"[n]ot only was the glass pipe containing methamphetamine residue on the shelf in the
'hidden entryway' found in close proximity to Keel, but the baggie of methamphetamine
was discovered in plain view on a desk near the entrance to the hidden room.
Additionally, Keel's attempt to avoid discovery by burrowing away in a hidden room
containing surveillance equipment certainly qualifies as suspicious behavior. Finally, the
jury was able to assess Wulf's credibility and weigh her testimony at trial in light of the
evidence that she had initially denied ownership of the methamphetamine. The fact that
the jury convicted Keel reflects the jury's decision to believe the statement made by
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Wulf at the time she was arrested and reject the testimony she provided later at trial. It is
not the function of an appellate court to reweigh the evidence or pass on the credibility
of witnesses. [Citation omitted.]
"Although Keel lacked exclusive control over the residence, when the evidence
is viewed in the light most favorable to the State, we find other incriminating evidence
that sufficiently linked Keel to the drugs and drug paraphernalia found inside. As such,
there was sufficient evidence presented from which a rational factfinder could find Keel
was in constructive possession of the drugs and drug paraphernalia." Keel, 2012 WL
4373012, at *3.

We have nothing more to add; the panel's analysis regarding the sufficiency of the
evidence is sound. We conclude that the State presented sufficient evidence to convict
Keel of possession of methamphetamine and possession of drug paraphernalia.

JURY INSTRUCTION ON DRUG PARAPHERNALIA

As noted above, the residential search turned up a glass pipe, a bong, and a bag
containing pipes. Keel's defense was that the items belonged to Wulf, not him.

Keel complains on appeal that an instruction on drug paraphernalia improperly
invaded the province of the jury by directing the jury to find that a pipe or bong
constitutes drug paraphernalia. Keel did not object to the proposed instructions at trial,
and the standard of review is therefore based on clear error. See K.S.A. 22-3414(3); State
v. Smith-Parker, 301 Kan. 132, 163, 340 P.3d 485 (2014).

Jury Instruction No. 3 reads:

"'Drug paraphernalia' means all equipment, products and materials of any kind
which are used or intended for use in ingesting, inhaling or otherwise introducing into
13



the human body a controlled substance in violation of the uniform controlled substances
act. 'Drug paraphernalia' shall include, but is not limited to:
"(1) Pipes,
"(2) Bongs."

The instruction closely tracked K.S.A. 2009 Supp. 21-36a01(f), which included
pipes and bongs in the definition of drug paraphernalia. See K.S.A. 2009 Supp. 21-
36a01(f)(12)(A)-(C), (G)-(J), (L), and (N). It also closely tracked PIK Crim. 3d 67.40—
now PIK Crim. 4th 57.180.

Keel contends on appeal that this instruction is clearly erroneous because it
required the jury to find that pipes and bongs were drug paraphernalia.

Read in isolation, the last sentence of Instruction No. 3 may indeed have suggested
to the jury that it was required to find that the pipes and bong were drug paraphernalia.
Instruction No. 3 was not, however, the only instruction given to the jury on the subject
of drug paraphernalia.

Jury Instruction No. 2 reads:

"The defendant is charged with the crime of unlawfully possessing with the
intent to use drug paraphernalia. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. That the defendant intentionally possessed drug paraphernalia to use to
ingest, inhale or otherwise introduce into the human body methamphetamine and/or
marijuana; and
"2. That this act occurred on or about the 14th day of May, 2010, in
McPherson, [sic] County, Kansas."

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Jury Instruction No. 4 reads:

"In determining whether an object is drug paraphernalia, you shall consider, in
addition to all other logically relevant factors, the following:
"Statements by a person in control of the object concerning its use.
"The proximity of the object, in time and space, to a direct violation of the
uniform controlled substances act.
"The proximity of the object to controlled substances.
"The existence of any residue of controlled substances."

Both Instructions Nos. 2 and 4 informed the jury that it had to find that the
defendant was using the pipes and/or bong as accessories to illegal drug consumption. In
the context of those instructions, Instruction No. 3 simply defined which objects the State
was including in its accusation of possessing drug paraphernalia. Even that instruction
specified that the items must be "used or intended for use in ingesting, inhaling or
otherwise introducing into the human body a controlled substance . . . ." Reading the
instructions as a whole, they informed the jury that it had to do more than simply find that
Keel was the possessor of a bong and/or pipes; it had to find that he was using or
intended to use the items as paraphernalia facilitating the intake of controlled substances.

This court addressed a nearly identical argument with respect to a drug
paraphernalia instruction in State v. Sisson, 302 Kan. ___, 351 P. 3d 1235 (2015). In
Sisson, this court approved similar instructions regarding scales used as drug
paraphernalia. The court pointed out that instructions are to be considered together as a
whole, without isolating any one instruction. 302 Kan. ___, Syl. ¶ 5. One phrase in a jury
instruction does not warrant reversal when the instructions, read in their entirety, properly
state the law. 302 Kan. ___, Syl. ¶ 5.

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Wulf testified that one pipe was used for smoking methamphetamine and the bong
and another pipe were both used to smoke marijuana. The jury had before it compelling
evidence that the items were used for illegal purposes. The instructions given track the
statutory language and accurately state the law. In conformity with Sisson, we find no
error here.

CLASSIFICATION OF PRIOR CONVICTIONS

After this court granted Keel's petition for review, he filed a motion to correct an
illegal sentence pursuant to K.S.A. 22-3504(1). Keel contends that this court's recent
decision in Murdock, 299 Kan. 312, dictates that his pre-KSGA convictions for attempted
aggravated robbery and aggravated robbery, even though they occurred in Kansas rather
than another state, be classified as nonperson crimes under K.S.A. 21-4710(d)(8),
because neither crime had a person/nonperson classification assigned to it when he
committed it.

At sentencing, Keel did not raise an objection to his criminal history score and
personally stipulated to the existence of all of the convictions listed in his PSI report.
Recently, we held in Dickey, 301 Kan. 1018, Syl. ¶ ¶ 3-4, that such actions or inactions
do not bar a defendant from appealing the legal effect of prior convictions upon the
calculation of his or her criminal history score. We stated:

"A defendant's stipulation or failure to object at sentencing to the convictions
listed in his or her presentence investigation report may prevent the defendant later
challenging the existence of the convictions listed in the report. But a stipulation or lack
of an objection at sentencing will not prevent the defendant from raising a subsequent
challenge under K.S.A. 22-3504(1) regarding the legal effect of his or her prior
convictions [i.e., how those convictions should be classified and counted for the purpose
of determining the defendant's criminal history score]." 301 Kan. 1018, Syl. ¶ 4.
16




In conformity with Dickey, we conclude that Keel's challenge to the classification
of his pre-KSGA Kansas convictions—essentially, a challenge to the resulting criminal
history score used to sentence him for his current convictions—is properly before this
court pursuant to K.S.A. 22-3504(1).

Standard of Review

Whether a prior conviction should be classified as a person or nonperson offense
involves the interpretation of the KSGA. Interpretation of a statute is a question of law
over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321
P.3d 12, cert. denied 135 S. Ct. 91 (2014); see also Makthepharak v. State, 298 Kan. 573,
578, 314 P.3d 876 (2013) (whether a sentence is illegal within the meaning of K.S.A. 22-
3504(1) is a question of law over which this court has unlimited review).

The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223
P.3d 780 (2010). While criminal statutes are generally strictly construed against the State,
this principle is subordinate to the rule that judicial interpretation must be reasonable and
sensible to effectuate the legislative design and the true intent of the law. State v. Phillips,
299 Kan. 479, 495, 325 P.3d 1095 (2014). In State v. Urban, 291 Kan. 214, 216, 239 P.3d
837 (2010), we stated:

"An appellate court must first attempt to ascertain legislative intent through the statutory
language enacted, giving common words their ordinary meanings. [Citation omitted.]
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
17



of construction or legislative history or other background considerations to construe the
legislature's intent. [Citation omitted.]" (Emphasis added.)

Analysis

We start out by acknowledging that there is no explicit language in the KSGA
telling courts precisely how to classify in-state or out-of-state pre-KSGA convictions or
juvenile adjudications as person or nonperson offenses for criminal history purposes. This
means we cannot merely interpret text whose meaning and effect are plain. See, e.g.,
Vontress v. State, 299 Kan. 607, 611, 325 P.3d 1114 (2014) (no need to resort to statutory
construction when language plain, unambiguous; appellate court interprets language as it
appears). This also is not a situation in which there is an unclear or ambiguous statutory
provision obviously meant to control the issue before us. In such circumstances, we
routinely move from statutory interpretation to statutory construction. See, e.g., State v.
Hobbs, 301 Kan. 203, 207, 340 P.3d 1179 (2015). And we have often recited that
construction moves beyond text to divine legislative intent, employing legal canons and
examining legislative history and other background considerations. See, e.g., Hobbs, 301
Kan. at 207.

Here, in this unique circumstance, we are neither interpreting plain language nor
construing ambiguous language according to the clues of legislative intent. Rather, we
must interpret the entire Act, looking to the overall design and purposes of the KSGA and
construing the Act according to its spirit and reason in order to determine whether the
omission at issue is a reasonable indication that the matter excluded is irrelevant to the
statutory scheme and the legislative intent, or whether the omission is actually a "silence
gap" that undermines—and introduces ambiguity into—other aspects of the Act. In the
latter circumstance, courts are ill-equipped to fill such a gap. Often, the wisest course is
for courts to defer to the legislature to act to fill such a gap. See, e.g., Eastman v.
18



Coffeyville Resources Refining & Marketing 295 Kan. 470, 476, 284 P.3d 1049 (2012);
Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan. 446, 464-65,
228 P.3d 403 (2010). In fact, this may fairly be characterized as this court's default
position. In more rare circumstances, this court has looked to common law predating
codification to fill a statutory silence. See State v. Quested, 302 Kan. __, 352 P.3d 553,
559-63 (2015).

Neither of these approaches seems wisest here. Waiting for litigation to interpret
or construe and then demarcate appropriate application of the legislature's 2015
amendment is, at best, impractical. At worst, it may be at least temporarily destructive of
the KSGA's purpose of consistent sentencing that differentiates between offenders along
lines that matter, for example, between those with and without violent histories. Turning
to preexisting common law also is not helpful, as there was no such thing as sentencing
classifications for person and nonperson crimes at common law.

In this case, however, given the overall design and structure of the KSGA, we
have determined that the legislature's failure to include a specific provision describing
how to score prior pre-KSGA in-state convictions or juvenile adjudications is
inconsequential. The provisions of the KSGA itself as explained below instructed that
prior convictions or adjudications be classified at the time of the current crime of
conviction. In reaching this conclusion, we are mindful that when 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. State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012). We also
"construe statutes in such a way as to avoid unreasonable results, and we presume that the
legislature does not intend to enact meaningless or redundant legislation." State v. Turner,
293 Kan. 1085, 1088, 272 P.3d 19 (2012).

19



This court has recognized that the principal purpose in enacting the KSGA was
"'to standardize sentences so that similarly situated offenders would be treated the same,
thus limiting the effects of racial and geographic bias.'" State v. Paul, 285 Kan. 658, 667,
175 P.3d 840 (2008) (quoting State v. Bandy, 25 Kan. App. 2d 696, 699, 971 P.2d 749
[1998], rev. denied 266 Kan. 1110 [1999]). The sentencing guidelines attempt to
accomplish this goal by applying two controlling factors to determine an offender's
sentence for a felony conviction: the severity level of the current crime of conviction and
the offender's criminal history score, which represents the number and severity of the
offender's prior convictions and/or juvenile adjudications. See K.S.A. 2009 Supp. 21-
4704(c) and (d); K.S.A. 21-4709. K.S.A. 21-4710(a) defines "prior conviction" as

"any conviction, other than another count in the current case which was brought in the
same information or complaint or which was joined for trial with other counts in the
current case pursuant to K.S.A. 22-3203 and amendments thereto, which occurred prior
to sentencing in the current case regardless of whether the offense that led to the prior
conviction occurred before or after the current offense or the conviction in the current
case."

In scoring prior convictions and juvenile adjudications for purposes of determining
an offender's criminal history score, a distinction is made between prior felony and
misdemeanor convictions or adjudications as well as whether those convictions or
adjudications constitute "person" or "nonperson" offenses. See K.S.A. 21-4709. Upon
implementation of the KSGA, the legislature added person and nonperson language to
most criminal statutes defining crimes. Generally, the legislature designated a crime as a
person offense if the crime inflicted or could inflict physical or emotional harm to
another. See, e.g., K.S.A. 21-3403 (classifying voluntary manslaughter as a "severity
level 3, person felony"); K.S.A. 21-3409(b) (classifying assault of a law enforcement
officer as a "class A person misdemeanor"). In contrast, crimes that inflicted or could
inflict damage to property were generally designated nonperson offenses. See, e.g.,
20



K.S.A. 21-3703 (classifying theft of mislaid property as a "class A nonperson
misdemeanor"); K.S.A. 21-3710(b)(1) (classifying forgery as a "severity level 8,
nonperson felony"); State v. Fifer, 20 Kan. App. 2d 12, 15, 881 P.2d 589, rev. denied 256
Kan. 996 (1994); Kansas Sentencing Guidelines, Desk Reference Manual, p. 37 (2014).
In some instances, the legislature has altered the person/nonperson designation to reflect
a different view regarding a particular crime's severity and impact. See State v. Williams,
291 Kan. 554, 557, 244 P.3d 667 (2010) (recognizing legislature's reclassification of
identity theft from person to nonperson offense); State v. Vandervort, 276 Kan. 164, 179,
72 P.3d 925 (2003) (recognizing legislature's reclassification of lewd and lascivious
behavior from nonperson to person offense), overruled in part by State v. Dickey, 301
Kan. 1018, Syl. ¶ 4, 350 P.3d 1054 (2015). In most cases, person crimes are weighted
more heavily than nonperson crimes in determining an offender's criminal history score.
See K.S.A. 21-4709.

After implementation of the KSGA, a crime which the legislature simply declared
to be either a felony or misdemeanor without designating it a person or nonperson offense
is considered "unclassified" and scored as a nonperson offense for criminal history
purposes. See K.S.A. 21-4710(d)(8) ("Unless otherwise provided by law, unclassified
felonies and misdemeanors, [sic] shall be considered and scored as nonperson crimes for
the purpose of determining criminal history."); State v. Murdock, 299 Kan. 312, 318, 323
P.3d 846 (2014), modified by Supreme Court order September 19, 2014 ("It is likely
K.S.A. 21-4710[d][8] was adopted to address the scoring of a very limited number of
current criminal statutes that do not categorize the crimes as person or nonperson
offenses."); K.S.A. 8-113 (crime of altering a vehicle identification number is classified
as a "felony"); K.S.A. 8-113a (an operator of a parking garage who fails to report an
unclaimed vehicle is guilty of a "misdemeanor"); K.S.A. 21-4213 (unlawful failure to
report a wound is a "class C misdemeanor"); K.S.A. 79-5208 (failure to affix drug tax
stamp is a "severity level 10 felony").
21




Before the KSGA was implemented on July 1, 1993, crimes in Kansas were
classified solely for purposes of imposing an indeterminate sentencing range for a
particular level of felony or misdemeanor. See K.S.A. 21-4501 (detailing classes of
felonies and prescribed terms of imprisonment); K.S.A. 21-4502 (detailing classes of
misdemeanors and prescribed jail terms). But, with the advent of the sentencing
guidelines and their use of a crime's severity level and an offender's criminal history to
determine a specific presumptive sentence for that offender, the language of most
criminal statutes was amended to reflect this change in sentencing.

When the KSGA was implemented, it included the following provisions within
K.S.A. 1993 Supp. 21-4710 for classifying prior convictions and juvenile adjudications
for purposes of determining an offender's criminal history:

"(a) Criminal history categories contained in the sentencing guidelines grid for
nondrug crimes and the sentencing guidelines grid for drug crimes are based on the
following types of prior convictions: Person felony adult convictions, nonperson felony
adult convictions, person felony juvenile adjudications, nonperson felony juvenile
adjudications, person class A misdemeanor adult convictions, nonperson class A
misdemeanor adult convictions, person class A misdemeanor juvenile adjudications,
nonperson class A misdemeanor juvenile adjudications, person class B misdemeanor
adult convictions, select class B nonperson misdemeanor adult convictions, person class
B misdemeanor juvenile adjudications and select class B nonperson misdemeanor
juvenile adjudications.
. . . .
"(d) The following are applicable to determining an offender's criminal history
classification:
(1) Only verified convictions will be considered and scored.
(2) All prior adult felony convictions, including expungements, will be considered
and scored.
22



(3) There will be no decay factor applicable for adult convictions.
(4) Except as otherwise provided, a juvenile adjudication, which would have
been a nonperson class D or E felony if committed before July 1, 1993, or a nondrug level
6, 7, 8, 9 or 10, or drug level 4, nonperson felony if committed on or after July 1, 1993, or
a misdemeanor if committed by an adult, will decay if the current crime of conviction is
committed after the offender reaches the age of 25.
(5) For convictions of crimes committed before July 1, 1993, a juvenile
adjudication which would constitute a class A, B or C felony, if committed by an adult,
will not decay. For convictions of crimes committed on or after July 1, 1993, a juvenile
adjudication which would constitute an off-grid felony, a nondrug severity level 1, 2, 3, 4
or 5 felony, or a drug severity level 1, 2 or 3 felony, if committed by an adult, will not
decay.
(6) All juvenile adjudications which would constitute a person felony will not
decay or be forgiven.
(7) All class A misdemeanor convictions, class B person misdemeanors and class
B select nonperson misdemeanors shall be considered and scored. Class C misdemeanors
will not be considered and scored.
(8) Unless otherwise provided by law, unclassified felonies and class A and B
misdemeanors, shall be considered and scored as nonperson crimes for the purpose of
determining criminal history.
(9) Prior convictions of a crime defined by a statute which has since been
repealed shall be scored using the classification assigned at the time of such conviction. "
(Emphasis added.)

See also K.S.A. 21-4711(f) (except as provided in subsections [4], [5] and [6] of K.S.A.
21-4710 and amendments thereto, for purposes of determining an offender's criminal
history score, "juvenile adjudications will be applied in the same manner as adult
convictions.").

The language of K.S.A. 1993 Supp. 21-4710 indicates that all prior convictions
and/or juvenile adjudications (except as provided in subsection [d][4] and [d][7])
occurring before July 1, 1993, were to be considered and scored for criminal history
23



purposes in order to properly sentence an offender for a current crime of conviction under
the KSGA. Despite the lack of explicit person/nonperson designations for pre-KSGA
crimes, the legislature clearly contemplated that such crimes would be scored (i.e.,
classified) as a particular type of prior conviction as listed in K.S.A. 1993 Supp. 21-
4710(a). The classifications include, among others, person felony adult convictions,
person felony juvenile adjudications, person class A misdemeanor adult convictions,
person class A misdemeanor juvenile adjudications, person class B misdemeanor adult
convictions, and person class B misdemeanor juvenile adjudications. See K.S.A. 1993
Supp. 21-4710(a). In other words, the language of K.S.A. 1993 Supp. 21-4710(a) shows
that the legislature recognized that a pre-KSGA conviction and/or adjudication could be
classified as a more serious person offense if such a classification was proper.

Further support for this conclusion comes from subsections (d)(4), (5), and (6) of
K.S.A. 1993 Supp. 21-4710, which address, among other things, the issue of how to
classify pre-KSGA juvenile adjudications for criminal history purposes. The language of
each subsection shows that this determination turns primarily on whether the crime of
adjudication was subsequently considered a person offense after implementation of the
KSGA. Subsection (d)(4) states that "a juvenile adjudication, which would have been a
nonperson class D or E felony if committed before July 1, 1993 . . . will decay if the
current crime of conviction is committed after the offender reaches the age of 25."
(Emphasis added.) K.S.A. 1993 Supp. 21-4710(d)(4). The italicized language is
significant because, as mentioned above, prior to July 1, 1993, a crime was not classified
as a person or nonperson offense but merely identified with a letter signifying its severity
level (e.g., class D felony). Thus the language conveys that a comparison between pre-
KSGA and post-KSGA criminal statutes must take place in order to determine whether a
juvenile adjudication for a class D or E felony committed before July 1, 1993, will be
counted and scored for criminal history purposes. If such a crime was reclassified as a
nonperson offense after implementation of the KSGA, then an adjudication for that crime
24



would decay (i.e., not be counted) on the offender's criminal history record if the current
crime of conviction was committed after the offender attained the age of 25. Accordingly,
a 1988 juvenile adjudication for making a false writing would be eligible for decay
because, at the time the crime was committed, it was classified as a class D felony and,
after implementation of the KSGA, was reclassified as a nonperson felony. Compare
K.S.A. 21-3711 (Ensley 1988) with K.S.A. 21-3711. Conversely, a pre-KSGA juvenile
adjudication for a class D felony that was reclassified as a person felony after
implementation of the KSGA does not decay. Thus a 1988 juvenile adjudication for
involuntary manslaughter will be considered and scored for criminal history purposes.
Compare K.S.A. 21-3404(c) (Ensley 1988) (classifying involuntary manslaughter as a
class D felony) with K.S.A. 21-3404 (classifying involuntary manslaughter as a person
felony).

Similarly, subsection (d)(5) of K.S.A. 1993 Supp. 21-4710 states that a juvenile
adjudication occurring prior to July 1, 1993, for a crime which would constitute a class A,
B, or C felony if committed by an adult will not decay on an offender's criminal record.
The apparent reason for this is that after implementation of the KSGA, most class A, B,
and C felonies—crimes that the legislature deemed the most serious—were reclassified
as person felonies. See Kansas Sentencing Guidelines, Desk Reference Manual,
Appendix A1 (1993). Thus, juvenile adjudications for class A, B, or C felonies are treated
the same for criminal history purposes as juvenile adjudications for class D and E
felonies that were later reclassified as person felonies after implementation of the KSGA.
Subsection (d)(6) of the statute reinforces this rule by stating: "All juvenile adjudications
which would constitute a person felony will not decay or be forgiven." (Emphasis added.)
K.S.A. 1993 Supp. 21-4710(d)(6).

The treatment of prior adult misdemeanor convictions under K.S.A. 21-4710 also
indicates that the legislature intended for pre-KSGA statutes to be compared to their post-
25



KSGA equivalents in order to determine how pre-KSGA misdemeanor convictions
should be classified for criminal history purposes. Subsection (d)(7), amended in 1994,
now states: "All person misdemeanors, class A nonperson misdemeanors and class B
select nonperson misdemeanors, and all municipal ordinance and county resolution
violations comparable to such misdemeanors, shall be considered and scored." K.S.A. 21-
4710(d)(7). In order to implement this command, comparable statutes must be consulted.
Accordingly, a 1988 adult conviction for battery would be considered and scored for
criminal history purposes because, at the time the crime was committed, it was classified
as a class B misdemeanor but later reclassified as a class B person misdemeanor upon
implementation of the KSGA. Compare K.S.A. 21-3412 (Ensley 1988) with K.S.A. 21-
3412(b). Conversely, a 1988 adult conviction for prostitution would not be considered or
scored for criminal history purposes because, at the time the crime was committed, it was
classified as a class B misdemeanor but later reclassified as a class B nonperson
misdemeanor upon implementation of the guidelines. Compare K.S.A. 21-3512(2)
(Ensley 1988) with K.S.A. 21-3512(b).

And finally under K.S.A. 21-4710, subsection (d)(9) states: "Prior convictions of
a crime defined by a statute which has since been repealed shall be scored using the
classification assigned at the time of such conviction." The clear implication is that if the
statute has not been repealed, then the crime is scored using the classification in the
statute at the time of the current crime of conviction. Most prior in-state convictions
continued to exist under the same statute that remained after the adoption of the KSGA.
In the less common circumstance when a criminal statute had been repealed post-KSGA,
the legislature envisioned this possibility and provided direction. When the statute under
which the prior conviction was obtained was still in effect, the structure of the KSGA, as
just previously described, simply pointed the court to that statute to determine how to
designate the prior conviction.

26



The theme of comparing analogous pre-KSGA and post-KSGA criminal statutes
for purposes of classifying a pre-KSGA conviction or adjudication for criminal history
purposes also echoes in the language of K.S.A. 21-4711(e), the language of which has
remained the same since it was implemented in July 1993. The statute, addressing the
issue of how to classify out-of-state convictions and juvenile adjudications, states:

"Out-of-state convictions and juvenile adjudications shall be used in classifying
the offender's criminal history. An out-of-state crime will be classified as either a felony
or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in
another state, it will be counted as a felony in Kansas. The state of Kansas shall classify
the crime as person or nonperson. In designating a crime as person or nonperson
comparable offenses shall be referred to. If the state of Kansas does not have a
comparable offense, the out-of-state conviction shall be classified as a nonperson crime."
(Emphasis added.) K.S.A. 21-4711(e).

Again, the designation of crimes in Kansas as either person or nonperson offenses
did not exist prior to the implementation of the KSGA. Upon implementation of the
KSGA, however, the legislature added language to most criminal statutes in order to
designate crimes as either person or nonperson offenses. Based on this history, which the
legislature must have been aware of when it enacted the KSGA, the import of the above
italicized language is that, regardless of when a prior out-of-state conviction or juvenile
adjudication took place (i.e., before or after July 1, 1993), the out-of-state conviction or
adjudication is classified to match the comparable post-KSGA criminal statute. If no
comparable post-KSGA criminal statute exists, then the out-of-state conviction or
adjudication must be classified as a nonperson offense.

The above in pari materia analysis of the various provisions of the KSGA shows
that, except as specifically stated otherwise, the legislature intended for all prior
convictions and juvenile adjudications—including convictions and adjudications
27



occurring before implementation of the KSGA—to be considered and scored for
purposes of determining an offender's criminal history score. In order to do this, a pre-
KSGA conviction and/or adjudication must be classified as either a person or nonperson
offense by comparing the criminal statute under which the prior offense arose to the
comparable post-KSGA criminal statute. As we explain below, the comparable post-
KSGA criminal statute is the one that was in effect at the time the current crime of
conviction was committed.

It is at this last point where today's decision departs from the majority decision in
Murdock and from the Williams decision upon which it relied. See Murdock, 299 Kan. at
315 (citing Williams, 291 Kan. 554, Syl. ¶ 4). The issue in Murdock was how to classify
two Illinois robbery convictions from 1984 and 1990 for criminal history purposes. The
majority in Murdock acknowledged the rule in K.S.A. 21-4711(e) that, in classifying a
prior out-of-state conviction as person or nonperson, "comparable [in-state] offenses shall
be referred to." Then, relying on Williams, 291 Kan. at 560, the majority concluded that
the comparable in-state offense for purposes of classifying the prior convictions was the
Kansas robbery statute in effect when the defendant committed his Illinois crimes.
Murdock, 299 Kan. at 317. Needless to say, this pre-KSGA criminal statute did not
designate robbery as a person or nonperson offense; it merely classified the crime as a
class C felony. See K.S.A. 21-3426 (Ensley 1981, 1988). Based on the lack of a
person/nonperson designation within the statute, the Murdock majority concluded that the
pre-KSGA crime of robbery must qualify as an unclassified felony. Then, relying at least
in part on what it conceded was a questionable application of K.S.A. 21-4710(d)(8), it
concluded that the defendant's two Illinois robbery convictions had to be scored as
nonperson offenses for purposes of determining his criminal history score. Murdock, 299
Kan. at 318-19.

28



Williams, the case that dictated Murdock's holding, attempted to distinguish our
earlier opinion in Vandervort, 276 Kan. at 174, which had held that the comparable
Kansas offense for the purpose of choosing a person or nonperson designation for prior
Virginia convictions was the version in effect at the time of the current crime of
conviction. Vandervort, as further discussed below, did involve a further complication:
The comparable Kansas statute's person and nonperson designation had changed during
the time since implementation of the KSGA and, more specifically, had changed during
the time period that the string of sex crimes underlying the defendant's current
convictions occurred. See 276 Kan. at 174. Our re-examination of Williams today leads
us to believe that its departure from Vandervort was a mistake and that it led to an
unintended emasculation of the established sentencing rule that the penalty parameters
for an offense are fixed on the date the offense was committed. See State v. Sylva, 248
Kan. 118, 120-21, 804 P.2d 967 (1991).

In Williams, the defendant pled guilty in separate cases to two counts of identity
theft committed in 2005 and 2006. Her criminal history included five Washington state
felony convictions for identity theft committed between December 2001 and September
2002. At the time the Washington crimes were committed, Kansas classified identity theft
as a person offense. And, at the time the defendant committed her 2005 identity theft
crime, the crime remained a person offense. But, by the time the defendant committed
identity theft in 2006, Kansas had reclassified the crime as a nonperson offense. See 291
Kan. at 556-57.

The parties in Williams agreed that for purposes of classifying the prior
Washington convictions, Kansas' identity theft statute was the comparable offense. See
K.S.A. 21-4711(e) ("An out-of-state crime will be classified as either a felony or a
misdemeanor according to the convicting jurisdiction. . . . The state of Kansas shall
classify the crime as person or nonperson. In designating a crime as person or nonperson
29



comparable offenses shall be referred to."). But the parties disagreed as to which version
of the statute was the comparable statute: (1) the version in effect when the defendant
committed the Washington crimes, (2) the versions in effect when the defendant
committed her current Kansas crimes, or (3) the version in effect on the date of the
defendant's sentencing for her current Kansas crimes.

Contrary to its current position, in Williams the State argued in both its brief and
before this court at oral argument that the person/nonperson designation should be
determined based on the law in effect on the date the prior crimes were committed—a
holding that would designate both of Williams' prior offenses as person felonies, resulting
in a longer prison sentence for her current Kansas offense. Williams argued that her prior
convictions should be classified based on the Kansas statute in effect when the current in-
state crimes were committed. Accordingly, for purposes of calculating the defendant's
criminal history score for sentencing on the 2005 identity theft crime, she contended that
her prior Washington convictions should be classified as person felonies. For the 2006
identity theft crime, she argued that her prior Washington convictions should be
classified as nonperson felonies.

Williams supported the classification rule she was advocating by citing
Vandervort. In that case, the defendant was convicted of two counts of rape, one count of
attempted rape, three counts of criminal sodomy, and seven counts of aggravated
indecent liberties with a child. The State had alleged that these crimes occurred in Kansas
between November 1996 and September 17, 2000. The defendant's criminal history
included a 1980 Virginia conviction for exposure, which was scored as a person felony
and contributed to the defendant having a criminal history score of B. Vandervort argued
that the exposure conviction should have been classified as a nonperson felony, making
his criminal history score a C.

30



In State v. Vandervort, 276 Kan. 164, 72 P.3d 925 (2003), overruled in part by
State v. Dickey, 301 Kan. 1018, Syl. ¶ 4, 350 P.3d 1054 (2015), the court determined that
the comparable offense to the 1980 Virginia exposure conviction was K.S.A. 2002 Supp.
21-3508 (lewd and lascivious behavior). 276 Kan. at 178-79. K.S.A. 21-3508 was
codified in 1969 and classified lewd and lascivious behavior as a class B misdemeanor.
K.S.A. 1969 Supp. 21-3508. With the enactment of the KSGA, language was added to
K.S.A. 21-3508 to designate lewd and lascivious behavior as a class B nonperson
misdemeanor. See K.S.A. 1993 Supp. 21-3508. The offense remained a class B
nonperson misdemeanor until July 1, 1998, when the statute was amended to classify
lewd and lascivious behavior with a person under 16 years of age as a severity level 9
person felony. Lewd and lascivious behavior with a person over 16 years of age remained
a class B nonperson misdemeanor. See K.S.A. 1998 Supp. 21-3508(b)(1) and (2). Thus
the 1998 amendment occurred during the window of time when the defendant committed
his current crimes.

As summarized by the Vandervort court, the defendant argued that

"since it is unclear when the acts occurred giving rise to his convictions in this case, the
jury could have convicted him for acts that occurred at any time during the period
between November 6, 1996, and September 17, 2000, reflected in the charging
documents. [Defendant] argues that since K.S.A. 2002 Supp. 21-3508 [lewd and
lascivious behavior] was classified as a nonperson misdemeanor prior to July 1, 1998,
and since the penalty imposed must agree with the provisions in effect at the time the
offense was committed, he should be sentenced under the lower criminal history."
(Emphasis added.) 276 Kan. at 179.

In other words, the defendant was advocating for adoption of the following rule: The
person/nonperson classification of a prior conviction is determined based on the
31



classification in effect for the comparable Kansas offense when the current crime of
conviction was committed.

The Vandervort court agreed with the defendant's argument, stating:

"[I]t is uncertain when the acts occurred which the jury relied upon to convict [the
defendant of the current crimes]. Without that determination, [the defendant] may have
been convicted for acts which occurred prior to July 1, 1998 [when lewd and lascivious
behavior was classified as a nonperson misdemeanor]. The State charged [the defendant]
with acts that occurred during a period between November 6, 1996, and September 17,
2000. The jury was instructed to consider this expansive period. With this uncertainty as
to when each act relied upon by the jury occurred, [the defendant] must be sentenced with
the lower criminal history." 276 Kan. at 180.

Because it was possible that the defendant committed at least some of his current
crimes of conviction prior to July 1, 1998, the Vandervort court held that the defendant's
1980 Virginia conviction for exposure had to be classified as a nonperson crime. K.S.A.
21-3508 classified the comparable lewd and lascivious offense as nonperson between
November 1996 and July 1, 1998. Consequently, the court vacated the defendant's
sentence and remanded his case for resentencing, with directions that his sentence be
based on a criminal history score of C. 276 Kan. at 180. In support of this result, the
Vandervort court quoted from Sylva, 248 Kan. at 121, which stated:

"Our rule that the penalty parameters for an offense are fixed as of the date of the
commission of the offense is fair, logical and easy to apply. Neither the State nor a
defendant may maneuver a sentencing date to take advantage of or avoid a change in a
statute." 276 Kan. at 180.

In short, Vandervort stood for the proposition that a prior conviction should be
classified for criminal history purposes based on the classification in effect for the
32



comparable Kansas offense at the time the current crime of conviction was committed,
and State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010) did not fully acknowledge
Vandervort's application of this rule. Consequently, Williams failed to apply the rule to
the classification issue before it. In describing Vandervort, the Williams court stated:

"The [Vandervort] opinion is not crystal clear. But the question of whether the
1998 version (level 9 person felony) or the 1969 version (Class B misdemeanor) of lewd
and lascivious behavior was the comparable offense to the 1980 Virginia conviction—
because of the date of the commission of the new Kansas offenses—simply was not
answered by the court. The Vandervort court instead narrowed its focus to the events that
occurred in Kansas between 1996 and 2000." 291 Kan. at 559.

This characterization of the classification issue before the Vandervort court led to
a resolution contrary to the existing precedent. The concern in Vandervort was
identifying the date of the current offenses for purposes of classifying a prior conviction
in order to ascertain the defendant's criminal history score. As discussed above, the
Vandervort court determined that, because the defendant's current crimes could have
occurred sometime between November 1996 and July 1, 1998, the defendant's 1980
Virginia conviction for exposure had to be classified as a nonperson crime based on the
nonperson classification in effect for the comparable offense—lewd and lascivious
behavior—between November 1996 and July 1, 1998. 276 Kan. at 179-80.

Because of the uncertainty as expressed in Williams regarding Vandervort's
holding, the Williams court adopted the State's incorrect interpretation of Vandervort and,
in turn, its claim that Vandervort actually supported the concept that a prior conviction
should be classified as a person or nonperson offense based on the comparable Kansas
statute in effect when the prior crime occurred. Williams stated:

33



"[T]he State contends Vandervort actually supports its position. It argues Vandervort
stands for the general principle that sentencing '"parameters for an offense are fixed as of
the date of the commission of the offense."' Vandervort, 276 Kan. at 180 (quoting Sylva,
248 Kan. at 121). According to the State, we should logically extend this general
principle to the current scenario and score the Washington offenses for sentencing
purposes according to their Kansas equivalents when the Washington offenses were
committed in 2001 and 2002." (Emphasis added.) 291 Kan. at 559.

Accepting this argument, the Williams court held that

"using the date of commission of the prior out-of-state crime to calculate the criminal
history would be consistent with our fundamental rule of sentencing for a current in-state
crime: sentencing in accordance with the penalty provisions in effect at the time the
crime was committed. We additionally observe that having the penalty parameters for an
offense '"fixed as of the date of the commission of the offense is fair, logical and easy to
apply."' Vandervort, 276 Kan. at 180 (quoting Sylva, 248 Kan. at 121)." 291 Kan. at 560.

Consequently, the Williams court held that the defendant's prior Washington convictions
for identity theft had to be classified as person offenses based on the classification in
effect for the comparable Kansas offense when the Washington crimes were committed.
291 Kan. at 562.

Williams relied on the statement of law from Vandervort and Sylva (i.e., penalty
parameters for an offense are fixed as of the date the offense was committed) as support
for adopting the State's classification rule that a prior conviction should be classified
based on the classification in effect when the prior crime was committed. But that
statement of law from Vandervort and Sylva refers to sentencing for a current conviction
and not the issue of how that same conviction should be classified for criminal history
purposes if the defendant is convicted of another crime at a later date. This is evident
from Sylva, which rejected the defendant's argument that two sentencing statutes,
34



effective on July 1, 1989, should have been applied to him at sentencing for his current
crimes of conviction—crimes he committed in March 1988. See Sylva, 248 Kan. at 119-
21. Williams' application of Vandervort and Sylva to determine the classification of prior
convictions is inaccurate because a current crime's person or nonperson designation has
no bearing on determining the penalty parameters for that crime. The impact of the
person/nonperson designation of a prior crime only comes into play in determining
criminal history if an offender commits a new, subsequent crime.

The penalty parameters for a crime under the KSGA are established by the
severity level of the current crime and the offender's criminal history score—determined
by the number of prior convictions and/or juvenile adjudications and how they are
classified. Because the "penalty parameters for a crime are fixed on the date the offense
was committed," the Vandervort court logically concluded that the person/nonperson
classification of a prior conviction must be based on the classification in effect for the
comparable offense when the current crime was committed. The Williams decision
strayed by (1) not fully recognizing Vandervort's holding and (2) by construing the
"penalty parameters are fixed on the date the offense was committed" rule as dictating
that a prior conviction's classification for criminal history purposes is forever set in stone
by the classification in place when the prior crime was committed.

Williams did specifically consider and ultimately reject using the date of when the
current crime was committed to determine the classification of a prior conviction. The
court reasoned that doing so

"increases the risk that laws will change in the intervening years, further complicates
calculations, and produces irregular results. [The defendant] admits that application of
such a rule in the instant case results in one of [the defendant's] prior offenses scoring as
a nonperson felony and another identical offense scoring as a person felony." 291 Kan. at
560.
35




This reasoning may appear to result in a less complicated means of determining
the classification of a prior offense. However, using the date of the current crime removes
the permanent effect of how prior crimes are treated for purposes of calculating criminal
history, thereby providing a mechanism for sentences to reflect ever-evolving sentencing
philosophies and correction goals.

For example, the legislature was motivated in 2005 to change the classification of
identity theft, thereby reflecting a modern view regarding the severity of this particular
crime. Utilizing the classification rule employed by Williams resulted in the defendant's
prior Washington convictions for identity theft being classified as person felonies and the
defendant, in turn, having a criminal history score A applied to the calculation of her
sentences for both the 2005 and 2006 identity theft crimes. See Williams, 291 Kan. at
555-56, 562.

In comparison, under the classification rule established by Vandervort and now by
Keel, Williams' Washington convictions would only have been classified as person
felonies for purposes of sentencing on the 2005 identity theft crime. For the 2006 identity
theft crime, the prior convictions would have been classified as nonperson felonies, since
that classification was in effect when the 2006 crime was committed. Consequently, the
defendant would have received a significantly lesser sentence for the 2006 crime based
upon Vandervort's classification rule. See Williams, 291 Kan. at 558. Although
classifying the prior convictions differently for the 2005 and 2006 crimes may seem like
an "irregular result," it is a result that allows the imposition of a presumptive sentence
that reflects the current viewpoint on the severity of identity theft.

Furthermore, classifying a prior conviction based on the classification in effect
when the current crime was committed also treats similarly situated defendants in the
36



same manner. For instance, if two defendants have the same or comparable convictions
on their criminal record and they both commit a new crime on the same date, then their
prior convictions will be classified in the same manner—resulting in the same criminal
history score for both defendants—regardless of when the prior convictions occurred
(e.g., before or after implementation of the KSGA). Thus, applying the Vandervort
classification rule fulfills the principal purpose of the KSGA, which is to standardize
sentences so that similarly situated offenders are treated the same. See State v. Paul, 285
Kan. 658, 667, 175 P.3d 840 (2008).

Finally, classifying a prior conviction or juvenile adjudication based on the
classification in effect for the comparable offense when the current crime was committed
complies with the Ex Post Facto Clause of the United States Constitution. See Nichols v.
United States, 511 U.S. 738, 747, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994)
("Enhancement statutes, whether in the nature of criminal history provisions such as
those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace
in state criminal laws, do not change the penalty imposed for the earlier conviction. As
pointed out in the dissenting opinion in Baldasar [v. Illinois, 446 U.S. 222, 232, 100 S.
Ct. 1585, 64 L. Ed. 2d 169 (1962) (Powell, J., dissenting)], '[t]his Court consistently has
sustained repeat-offender laws as penalizing only the last offense committed by the
defendant. [Citations omitted.]'" [Emphasis added.]); Beazell v. Ohio, 269 U.S. 167, 169-
70, 46 S. Ct. 68, 70 L. Ed. 216 (1925) ("[A]ny statute which . . . makes more burdensome
the punishment for a crime, after its commission, . . . is prohibited as ex post facto."
[Emphasis added.]); State v. Overton, 279 Kan. 547, 561, 112 P.3d 244 (2005) ("[T]he
fundamental rule for sentencing is that the person convicted of a crime is sentenced in
accordance with the sentencing provisions in effect at the time the crime was
committed.").

37



Based on the above analysis, we conclude that Williams was wrongly decided, and
we hereby overrule it. Because the result reached in State v. Murdock, 299 Kan. 312, 323
P.3d 846 (2014), modified by Supreme Court order September 19, 2014, was dictated by
Williams, we also overrule Murdock. Based on Vandervort and Sylva, the punishment for
a current crime is set at the time the crime is committed. Thus, the classification of a prior
conviction or juvenile adjudication as a person or nonperson offense for criminal history
purposes under the KSGA is determined based on the classification in effect for the
comparable Kansas offense at the time the current crime of conviction was committed.

Applying this rule here dictates that Keel's pre-KSGA convictions for attempted
aggravated robbery and aggravated robbery be classified as person felonies. When Keel
committed his current crimes on May 14, 2010, attempted aggravated robbery and
aggravated robbery were classified in Kansas as person felonies for criminal history
purposes. See K.S.A. 21-3427 ("Aggravated robbery is a severity level 3, person
felony."); K.S.A. 21-4711(g) ("A prior felony conviction of an attempt . . . to commit a
crime shall be treated as a person or nonperson crime in accordance with the designation
assigned to the underlying crime."). We therefore conclude that the district court properly
classified these prior convictions as person felonies.

We note that the classification rule we apply today is consistent with the recent
amendments the legislature made to K.S.A. 2014 Supp. 21-6810 (formerly K.S.A. 21-
4710) and K.S.A. 2014 Supp. 21-6811 (formerly K.S.A. 21-4711) in response to the
majority's decision in Murdock. See House Bill No. 2053, L. 2015, ch. 5, secs. 1 and 2
(effective April 2, 2015). The dissent would have us apply those amendments to the
issues raised in this case. In support of its position, the dissent relies on State v. Prine,
297 Kan. 460, 303 P.3d 662 (2013) (Prine II), a case involving the application of an
amended version of an evidentiary rule in Prine's subsequent retrial. In that case, we
easily disposed of Prine's constitutional concerns, noting that statutory alteration of legal
38



rules of evidence "generally do not violate the [Ex Post Facto] Clause"; "'"do not attach
criminality to any act previously done, and which was innocent when done; nor aggregate
any crime theretofore committed; nor provide a greater punishment therefor than was
prescribed . . . ."'". Prine, 297 Kan. at 470.

Here, however, the question of whether the amended statute increases punishment
is at the heart of the defendant's claim. And, unlike in Prine II, the amended statute was
not in effect when Keel's sentencing issues arose, and the issue was not addressed in
district court, was not a part of the original appeal, was not argued before this court, and
was not comprehensively addressed in the subsequent briefs filed in this matter. In
passing these amendments, the legislature explicitly indicated its intention that the
amendments are to be applied retroactively. We note this expressed intention is not
dispositive of any constitutional question that might have arisen in this case under the Ex
Post Facto Clause. See State v. Todd, 299 Kan. 263, 275, 323 P.3d 829, cert. denied 135
S. Ct. 460 (2014). But today's decision eliminates the need for any ex post facto analysis
to occur in this case.

CONCLUSION

We affirm the decision of the Court of Appeals affirming Keel's convictions. We
also affirm the district court's decision to classify Keel's 1993 convictions for attempted
aggravated robbery and aggravated robbery as person felonies. Accordingly, we conclude
that Keel was assigned a correct criminal history score and, in turn, received a legal
sentence under the sentencing guidelines. Thus, we affirm his sentence.




39



* * *

BEIER, J., concurring. I agree with the majority's result and rationale today. I have
been persuaded to change my position from that expressed by my votes in State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order
September 19, 2014, and State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010), because
of the majority's honest acknowledgment of its need to deal with statutory silence in this
exceptional case. In my view, it has done so effectively. This decision should not be read
to signal wholesale repudiation of or departure from this court's usual approach to
statutory interpretation and construction when we have legislative language on point to
examine.

* * *

JOHNSON, J., concurring in part and dissenting in part: I concur in the majority's
result, based solely upon our revision of the holding in State v. Williams, 291 Kan. 554,
244 P.3d 667 (2010), whereby we now determine the person/nonperson offense
designation of a prior conviction by looking to the designation statutorily assigned to the
comparable crime at the time the current crime of conviction was committed. That
change eliminates the troublesome circumstance of Kansas having no person felonies
prior to the enactment of the Kansas Sentencing Guidelines Act. Accordingly, I view the
majority's exercise in statutory interpretation—presumably to vindicate the view
espoused by the dissent in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014),
modified by Supreme Court order September 19, 2014—as unnecessarily (and
dangerously) complicating and adulterating the process. I dissent from that superfluous
portion of the majority opinion.

BILES, J., joins in the foregoing concurring and dissenting opinion.
40



* * *

NUSS, C.J.: I write separately to advocate for a different analytical process than
the one chosen by the majority. As explained below, I would not base this court's
decision on our independent revisiting and overruling of two of our precedential
decisions from the last 5 years. Rather, I would base our decision on the 2015 statutory
amendments that we not only invited the legislature to pass but then also actually ordered
the parties to brief.

We unanimously held in State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010),
that when calculating a criminal history that includes out-of-state convictions, the
designation of those crimes as person or nonperson was made as of the date the out-of-
state crimes were committed. We based our decision on our prior statements of a
fundamental rule for sentencing: that the person convicted of a crime is sentenced in
accordance with the penalty provisions in effect at the time the crime was committed. 291
Kan. at 559.

We relied upon this "long-recognized rule" because the parties had not cited, nor
had we been able to locate, any Kansas statutes identifying this determinative event. 291
Kan. at 559-60. These events included, for example, when the prior out-of-state crime
was committed, when the current crime was committed, or when the sentencing for the
current crime occurred.

The Kansas Legislature took no action in response to Williams, despite the
majority's position today that Williams had failed to apply the "rule" from State v.
Vandervort, 276 Kan. 164, 72 P.3d 925 (2003)—that the designation of the prior out-of-
state crime was made as of the date the defendant committed the current Kansas crime of
conviction. Presaging our statement in Williams that no Kansas statute identified the
41



determinative event, Vandervort had not mentioned any statute, especially the Kansas
Sentencing Guidelines Act (KSGA), as the source of the court's ruling. See 276 Kan. at
179-80.

Four years after Williams, in State v. Murdock, 299 Kan. 312, 323 P.3d 846
(2014), the court's majority built upon Williams. Echoing our previous inability in
Vandervort and Williams to find any assistance in any statute about such determinative
events, we concluded that "[i]n the absence of a statutory directive, we are left with our
decision in Williams that the comparable Kansas offense should be determined as of the
date the out-of-state offenses were committed." (Emphasis added.) 299 Kan. at 317.
Concerning the particular designation of pre-1993 out-of-state crimes as person or
nonperson offenses, we stated more specifically:

"[T]here is no statutory mechanism either through K.S.A. 21-4710(d)(8) or
another KSGA provision allowing us to draw a distinction between the current
guidelines sentencing statutes and the pre-1993 criminal statutes. We hold that
Murdock's two prior out-of-state convictions must be scored as nonperson
offenses under K.S.A. 21-4710(d)(8) following our controlling Williams
precedent. We recognize this rule results in the classification of all pre-1993
crimes as nonperson felonies—an outcome the State characterizes as
unreasonable. But the solution to the State's complaint sits with the legislature."
(Emphasis added.) 299 Kan. at 319.

We soon received the State's motion for modification of Murdock and Murdock's
response. We denied the motion but set the matter for oral argument. After oral argument,
but without additional briefing, we modified the Murdock opinion on September 19,
2014, only to clarify that "this rule results in the classification of all out-of-state pre-1993
crimes as nonperson felonies." (Emphasis added.) 299 Kan. at 319.

42



The 2015 Kansas Legislature then accepted our Murdock invitation to create a
statutory solution to the KSGA problem we had exposed. Specifically, the legislature
drafted, introduced, received testimony and additional committee vetting, floor debated,
and eventually passed House Bill 2053. The Governor signed the bill on March 25, 2015,
and the law became effective upon publication in the Kansas Register on April 2. See L.
2015, ch. 5, secs. 1-5. In my view, each branch of government—judicial, legislative, and
executive—thus performed its respective role as contemplated in the Kansas
Constitution. See State ex rel. Morrison v. Sebelius, 285 Kan. 875, 888, 179 P.3d 366
(2008) (separation of powers doctrine embodied in the Kansas constitutional framework).

The same day the law became effective, we issued an order for supplemental
briefing in the instant case. In our order, we acknowledged that "[t]he issue of how to
classify pre-guideline convictions for purposes of determining criminal history is raised
in this case." So we commanded:

"Because HB 2053 may be relevant to the resolution of the classification
issue and because the parties did not have the opportunity to discuss the statute at
the time of briefing and oral argument [on March 6, 2015], the parties are hereby
ordered to file supplemental briefs stating their positions on the applicability of
the statute to the present case." (Emphasis added.)

We duly received the parties' required briefs: not only their supplemental briefs, but also
a response brief by Keel. Among other considerations, they addressed the issue of the
new law's retroactivity.

In short, all entities and persons concerned ultimately accepted this court's
invitations or complied with its orders. So I would stay true to the procedural course this
court has charted since our Murdock decision. Accordingly, I would now address the
43



legislature's good-faith efforts to fix the KSGA problem we first uncovered and whose
correction we then invited.

In addition to the matter of respect due a coordinate branch of Kansas government,
see Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), there is
certainly ample precedent for reviewing the legislature's efforts under such
circumstances. And as for the majority's refusal to now address the 2015 amendments in
order to wait for litigation before interpreting them—because doing so today "is, at best,
impractical"—I submit they are quite ready for our interpretation because we ordered,
and received, special briefing on them. Slip op. at 18. The facts in the instant case do not
need further development.

As just one illustration of ample precedent, I point to State v. Prine, 287 Kan. 713,
200 P.3d 1 (2006) (Prine I). There, we reversed the defendant's convictions for sex
crimes against children and ordered retrial due to errors in admitting into evidence his
prior bad acts because they failed to meet the requirements of K.S.A. 60-455.

We observed the statute contained language disallowing evidence of prior bad acts
admitted only to show propensity to commit a crime. We eventually stated that whether
to allow propensity evidence would be up to the legislature:

"[E]vidence of prior sexual abuse of children is peculiarly susceptible to
characterization as propensity evidence forbidden under K.S.A. 60-455 and, thus,
that convictions of such crimes are especially vulnerable to successful attack on
appeal. This is disturbing because the modern psychology of pedophilia tells us
that propensity evidence may actually possess probative value for juries faced
with deciding the guilt or innocence of a person accused of sexually abusing a
44



child. In short, sexual attraction to children and a propensity to act upon it are
defining symptoms of this recognized mental illness. . . .

"Of course, the legislature, rather than this court, is the body charged with
study, consideration, and adoption of any statutory change that might make
K.S.A. 60-455 more workable in such cases, without doing unconstitutional
violence to the rights of criminal defendants. It may be time for the legislature to
examine the advisability of amendment to K.S.A. 60-455 or some other
appropriate adjustment to the statutory scheme." (Emphasis added.) 287 Kan. at
737.

As in the instant case, the legislature quickly responded to our invitation with
statutory amendments. They included a new provision generally allowing propensity
evidence in certain sex offense cases, i.e., "evidence of the defendant's commission of
another act or offense of sexual misconduct is admissible, and may be considered for its
bearing on any matter to which it is relevant and probative." K.S.A. 2009 Supp. 60-
455(d); L. 2009, ch. 103, sec. 12.

At Prine's new trial bad acts evidence was again admitted, he was again convicted,
and he again appealed. See State v. Prine, 297 Kan. 460, 303 P.3d 662 (2013) (Prine II).
Again similar to the instant case, the issue of the amendments' retroactivity was among
those briefed and argued. We ultimately rejected the defendant's argument that the Ex
Post Facto Clause had been violated and proceeded to review the amendments. 297 Kan.
at 472. Pointedly, we did not simply disregard the retroactivity issue, reinterpret the
original statutory form that we had addressed and invited the legislature to amend in
Prine I, and then conclude Prine I was wrongly decided.

After interpreting and applying the statutory amendments to Prine's circumstances,
we ultimately affirmed his convictions. In our statutory analysis, we noted "the
45



legislature's intention to relax the prohibition on evidence of other acts or offenses of
sexual misconduct to show propensity . . . in sex crime cases is explicit in the statute's
new subsection (d)." (Emphasis added.) 297 Kan. at 476.

Instead of following the path traveled by this court in Prine and in its other
decisions, the majority independently now elects to revisit—and reverse—our decisions
in Williams and Murdock. And it resorts to adding its voice to fill the "'silence gap'" in
the old statute. Slip op. at 18. Prine II spoke to this specific approach as well:

"We cannot delete provisions or supply omissions in a statute. No matter what the
legislature may have really intended to do, if it did not in fact do it, under any
reasonable interpretation of the language used, the defect is one that the
legislature alone can correct. See State v. Johnson, 289 Kan. 870, 879, 18 P.3d 46
(2009)." 297 Kan. at 475.

Prine II and Johnson were not this court's first warnings about judicially adding a
voice to fill a silence gap in a statute. Seventy-five years ago this court pronounced:

"Courts frequently face the temptation to usurp legislative functions by
writing into statutes something which the legislature itself did not put in them.
But, however laudable the end sought may seem to be, the importance of
observing the limitations of the judicial function transcends all immediate and
temporary consideration. Vital defects in the statute are for the legislature to
correct." Russell v. Cogswell, 151 Kan. 793, 796-97, 101 P.2d 361 (1940).

One might argue that, in effect, the Vandervort and Williams courts were filling in
statutory gaps—after acknowledging, directly or indirectly, that no statute addressed the
question that had been posed. It might be further said, however, that the practical problem
with such judicial action is illustrated by the different answers provided in those cases to
46



the same posed question. This is yet another reason for this court to review the 2015
amendments: instead of trying to divine the legislature's intent, we now clearly know it.

The difficulty with divining the legislative intent in order to fill in a statutory gap,
instead of clearly knowing that intent, is demonstrated by the majority opinion. One of
several specific problems with its approach is the date, or event, it has selected to fill the
KSGA's "silence gap." Declaring that pre-KSGA offenses were meant to be scored as
person or nonperson, the majority chooses "the date of the current crime's commission"
as the determining event for such scoring.

But one might just as easily choose the date the KSGA became effective, i.e., July
1, 1993, when the majority admits almost all crimes expressly received their person or
nonperson designation from the legislature. Slip op. at 20. That date would be consistent
with the majority's conclusion that "the language of K.S.A. 1993 Supp. 21-4710 indicates
that all prior convictions and/or juvenile adjudications . . . occurring before July 1, 1993,
were to be considered and scored for criminal history purposes in order to properly
sentence an offender for a current crime of conviction under the KSGA." Slip op. at 23.
As for post-July 1, 1993, crimes, they simply could be scored under the KSGA using the
date of their commission, and such designation would remain unchanged. See, e.g.,
Williams, 291 Kan. at 562.

Having two different rules for designations of prior crimes would not be
inconsistent with the KSGA. After all, for prior out-of-state convictions, the legislature
has declared that the person or nonperson designation will be made by Kansas. But the
felony or misdemeanor designation will be made by the convicting state. K.S.A. 21-
4711(e) provides:

47



"An out-of-state crime will be classified as either a felony or a misdemeanor
according to the convicting jurisdiction. If a crime is a felony in another state, it
will be counted as a felony in Kansas. The state of Kansas shall classify the crime
as person or nonperson. In designating a crime as person or nonperson
comparable offenses shall be referred to." (Emphasis added.)

And such a simple date-based rule certainly would be "'fair, logical, and easy to
apply.'" Slip op. at 32 (citing Vandervort, 276 Kan. at 180 [quoting State v. Sylva, 248
Kan. 118, 121, 804 P.2d 967 (1991)]). It also would have an advantage over the
majority's selected rule by not requiring constant recalculations of prior crimes in an
offender's criminal history each time a new crime is committed. In other words,
"revisionist history" would not be necessary. And there could be a reduction, if not
elimination, of other claims, e.g., that due process was violated through lack of notice to
the offender that the severity level of his or her long-past crimes would be changed.

Finally, we must consider the source of the majority's selected rule to fill the
KSGA's gap. The majority cites Vandervort, which in turn quotes Sylva. Slip op. at 32.
The relied-upon statement from Vandervort is as follows:

"Our rule that the penalty parameters for an offense are fixed as of the date of the
commission of the offense is fair, logical, and easy to apply. Neither the State nor
a defendant may maneuver a sentencing date to take advantage of or avoid a
change in a statute. State v. Sylva, 248 Kan. 118, 121, 804 P.2d 967 (1991)."
(Emphasis added.) 276 Kan. at 180.

As the majority correctly observes, however, Sylva did not involve criminal
histories. "[T]hat statement of law from Vandervort and Sylva refers to sentencing for a
current conviction and not the issue of how that same conviction should be classified for
criminal history purposes if the defendant is convicted of another crime at a later date."
48



Slip op. at 34. For this reason, the majority then criticizes Williams' reliance upon the
Sylva language to support its holding: when calculating a criminal history that includes
out-of-state convictions, the designation of those crimes as person or nonperson is made
as of the date the out-of-state crimes were committed. See Williams, 291 Kan. at 560.

But if the Sylva language is inapplicable to support Williams' holding because
Sylva does not apply to prior crimes, is it not also inapplicable to support Vandervort's
holding about prior crimes? The "rules" from both Vandervort and Williams apparently
have the same root; they just grew in different directions. Both were deemed "logical
extensions" of Sylva. Slip op. at 34-35; Williams 291 Kan. at 559-60.

In sum, the majority's rule for filling the KSGA gap is provided by a decision—
Vandervort—that did not mention any statute, especially the KSGA, as the source of the
court's ruling. See 276 Kan. at 179-80. More critically, the real source of the Vandervort
ruling instead was caselaw that by the majority's own admission did not even involve
prior convictions—the scoring of which was the salient point at issue there and in the
instant case.

As explained above, particularly under these circumstances, choosing the
determinative dates or triggering events is the job of the legislature, not of this court's
majority. And potentially pointing to the 2015 legislative amendments as conclusive
proof of legislative intent or confirmation of the majority's opinion is unpersuasive. See
slip op. at 38. Simply put, action by the 2015 legislature does not indisputably prove
intent of the 1992 legislature which passed the KSGA, particularly K.S.A. 1993 Supp.
21-4710 upon which the majority principally relies. See slip op. at 21-25; State Bd. of
Nursing v. Ruebke, 259 Kan. 599, Syl. ¶ 12, 913 P.2d 142 (1996) (statute must be
interpreted in context in which it was enacted and in light of legislature's intent at that
time); State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 773,
49



69 P.3d 1087 (2003) (courts ordinarily presume that by changing language of statute
legislature intended to change its effect). And even if the legislature originally intended to
create the rule adopted by today's majority, that intent arguably changed in 2010 when it
failed to modify our holding in Williams that was contrary to that original intent. See Hall
v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008) (when legislature
does not modify statute to avoid a standing judicial construction of that statute, the
legislature is presumed to agree with that judicial construction).

In conclusion, the majority's path is a needless departure from our original charted
course. Moreover, it introduces unnecessary risk. Specifically, it disregards the legislative
intent contained in the express language of the 2015 amendments. See Prine II, 297 Kan.
at 476 ("the legislature's intention . . . is explicit in the statute's new subsection [d]").
Instead it opts for the venturesome approach of attempting to not only divine the
legislature's intention from 1992—which historically has proven uncertain—but also to
fill the legislature's "gap," despite the 75-year-old admonition from Russell to resist this
temptation.

If we stay true to the process that was contemplated by this court in Murdock and
that progressed through the Keel supplemental briefing, then we can address the issue of
the retroactivity of the legislative solution contained in House Bill No. 2053, L. 2015, ch.
5, secs. 1 and 2. See slip op. at 38; Prine II, 297 Kan. at 476. We may also address any
other considerations that have arisen in the parties' briefs.

In short, I respectfully dissent.