State v. LaBelle

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,136

STATE OF KANSAS,
Appellee,

v.

KEVIN J. LABELLE,
Appellant.


SYLLABUS BY THE COURT

1.

The question of whether a sentence is illegal is a question of law over which this
court has unlimited review. An illegal sentence is a sentence imposed by a court without
jurisdiction, a sentence which does not conform to the statutory provision, either in
character or the term of the punishment authorized, or a sentence which is ambiguous
with regard to the time and manner in which it is to be served.

2.
A litigant may not invite and lead a trial court into error and then complain of the
trial court's action on appeal.

3.
A trial court cannot use the same prior criminal conviction to compute a
defendant's criminal history score and to double the sentence as a persistent sex offender
under K.S.A. 21-4704(j).



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4.
Juvenile adjudications are not to be considered in the determination of persistent
sex offender status under K.S.A. 21-4704(j).

5.
Under the facts of this case, because the trial court was unclear on the basis it used
for classifying defendant as a persistent sex offender, the sentence is vacated and the case
remanded for resentencing.

6.
Construction of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq.,
and determination of the constitutionality of its provisions are questions of law.

7.
A sentence to any term within the range stated in a Kansas sentencing guidelines
presumptive grid block does not violate Cunningham v. California, 549 U.S. 270, 166 L.
Ed. 2d 856, 127 S. Ct. 856 (2007), or Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.
2d 435, 120 S. Ct. 2348 (2000).

8.
Under K.S.A. 21-4721(c)(1), an appellate court is without jurisdiction to consider
a challenge to a presumptive sentence, even if that sentence is to the highest term in a
presumptive grid block.

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 22, 2008.
Appeal from Sedgwick district court; WARREN M. WILBERT, judge. Opinion filed May 28, 2010.
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part.
Judgment of the district court is affirmed in part, vacated in part, and remanded for resentencing.

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

Julie A. Koon, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district
attorney, and Steve Six, attorney general, and Paul E. Morrison, former attorney general, joined her on the
briefs for appellee.

The opinion of the court was delivered by

NUSS, J.: Kevin J. LaBelle appeals the Court of Appeals' affirmation of the district
court's denial of his motion to correct an illegal sentence. We granted LaBelle's petition
for review; our jurisdiction is under K.S.A. 20-3018(b).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in classifying LaBelle as a persistent sex offender and
in ultimately doubling his sentence pursuant to K.S.A. 21-4704? Yes.
2. Did the district court violate LaBelle's Sixth Amendment rights under the
United States Constitution by sentencing him to the aggravated term in the
sentencing grid block without submitting the facts to a jury for proof beyond a
reasonable doubt? No.

Accordingly, we vacate LaBelle's sentence and remand for resentencing.

FACTS

Pursuant to a plea agreement, in 2005 Kevin J. LaBelle pled guilty to one count of
sexual exploitation of a child, a severity level 5 person offense under K.S.A. 21-
3516(a)(2). The agreement permitted the State to ask the court to double LaBelle's
sentence under K.S.A. 21-4704(j), the persistent sex offender statute.

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The original presentence investigation report (PSI) scored LaBelle's criminal
history as "A" and showed 122-130-136 months as the presumptive sentencing range for
his current crime of conviction. For reasons unclear in the record, the presentence
investigator prepared and filed an amended PSI the day after filing the original.

The criminal history score in both the original and amended PSI was based, in
part, upon LaBelle's prior adult conviction for indecent liberties with a child in 91 CR
1043. The original PSI also included in its criminal history score LaBelle's prior juvenile
adjudication for indecent liberties with a child in 88 JV 1252. But the amended PSI then
deleted that adjudication from the criminal history computation, lowering LaBelle's
criminal history score to "B." The amended PSI also showed 228-240-256 months as the
presumptive sentencing range for a severity level 5, criminal history "B" grid block,
which is double that grid block's presumptive range. The amended PSI does not explain
why the presumptive sentencing range is doubled. While doubling would be authorized
for a persistent sex offender, the district court had not yet classified LaBelle as one.

At LaBelle's later sentencing hearing, the district court judge stated, "The
[amended] presentence investigation in this matter would indicate that the defendant is a
Criminal History B and also meets the requirements of a persistent sex offender under the
statute." While the amended PSI never explicitly states that LaBelle is a persistent sex
offender, the judge presumably derived this classification from the PSI's doubling of the
presumptive sentencing range. When asked by the court, both counsel agreed that the
criminal history score and persistent sex offender classification were correct. The court
then formally classified LaBelle as a persistent sex offender but did not specify which
prior sexually violent crime, 88 JV 1252 or 91 CR 1043, supported this finding.
Ultimately, the court sentenced LaBelle to 256 months' imprisonment, i.e., double the
aggravated term of 128 months in the presumptive sentencing range for his grid block.

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LaBelle filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504.
His argument assumed the district court used 91 CR 1043 to classify him as a persistent
sex offender. He therefore challenged the use of 91 CR 1043 to also increase his criminal
history score. The district court judge overruled LaBelle's motion, writing in the motion
minutes sheet, "Defendant sentenced as a persistent sex offender. No constitutional issue
of upward departure is at issue." There was no further mention of this issue.

LaBelle then filed a pro se motion to alter or amend judgment. He claimed the
district court's order overruling the motion to correct an illegal sentence lacked specific
findings and contained inadequate conclusions. He reasserted his claim that the dual use
of 91 CR 1043 was improper. The State responded that there was no dual use because
the court had classified LaBelle as a persistent sex offender using his 88 JV 1252
adjudication and not his 91 CR 1043 conviction. In a motion minutes sheet, the court
overruled LaBelle's motion by writing, "Abuse of remedy. Court has already ruled on the
issues." The Court of Appeals affirmed. State v. LaBelle, 2008 WL 3915985, at *1-2
(2008).

More facts will be added as necessary to the analysis.

ANALYSIS

Issue 1: The district court erred in classifying LaBelle as a persistent sex offender and in
ultimately doubling his sentence.

LaBelle claims under K.S.A. 22-3504 that he received an illegal sentence because
the district court improperly classified him as a persistent sex offender. Our standard of
review is as follows:

"The question of whether a sentence is illegal is a question of law over which this court
has unlimited review. An illegal sentence is a sentence imposed by a court without
jurisdiction, a sentence which does not conform to the statutory provision, either in
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character or the term of the punishment authorized, or a sentence which is ambiguous
with regard to the time and manner in which it is to be served." Deal v. State, 286 Kan.
528, Syl. ¶ 1, 186 P.3d 735 (2008).

Accord State v. Ballard, 289 Kan. 1000, Syl. ¶ 11, 218 P.3d 432 (2009).

As a threshold matter, the State claims that LaBelle stipulated to his criminal
history score at sentencing and cannot complain about the score on appeal. It cites State
v. McBride, 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996). There, the defendant
stipulated to the criminal history worksheet at sentencing. After pronouncement of
sentence, he filed a motion to correct clerical and arithmetic errors, claiming a prior
juvenile conviction was a nonresidential burglary and not a residential one. The district
court denied the motion, the defendant appealed, but the Court of Appeals found his
appeal untimely. After noting that "a sentence can no longer be modified after its
pronouncement," the court rejected defendant's claim that his motion to correct clerical
and arithmetic errors effectively was a motion to correct an illegal sentence, which can be
raised at any time. 23 Kan. App. 2d at 304. The court opined that defendant invited the
error by stipulating to the criminal history score and could not complain or take
advantage of such error on appeal.

We disagree with the State. Unlike McBride, LaBelle does not dispute the
accuracy of the amended PSI. More specifically, he does not challenge the amended
PSI's computation of his criminal history. Rather, he appeals the district court's particular
use of his prior crimes when classifying him as a persistent sex offender.

We recognize that LaBelle's attorney acknowledged at sentencing that the
amended PSI provided a criminal history score of "B" and that LaBelle met the
requirements of a persistent sex offender. We further recognize that a "litigant may not
invite and lead a trial court into error and then complain of the trial court's action on
appeal." State v. Kirtdoll, 281 Kan. 1138, Syl. ¶ 8, 136 P.3d 417 (2006). But this rule
7

does not preclude LaBelle's motion to correct an illegal sentence. As fully discussed
below, LaBelle does qualify as a persistent sex offender, and his attorney's statement at
sentencing did not invite the error. Simply put, his admission did not anticipate the
grounds upon which the district court would classify—and sentence—him as a persistent
sex offender, which is the basis for his appeal. Finally, there is no dispute that LaBelle
timely filed his motion to correct an illegal sentence, and we do not face a jurisdictional
dilemma similar to McBride. See K.S.A. 22-3504(1) ("The court may correct an illegal
sentence at any time.").

Having rejected the State's threshold argument, we now turn to the merits. The
amended PSI computed LaBelle's criminal history as "B" by using his six prior adult
convictions, including 91 CR 1043. LaBelle's prior juvenile adjudications, including 88
JV 1252, were listed but not used in the history computation.

K.S.A. 21-4704(j) requires courts to double the sentence of persistent sex
offenders. The statute defines "persistent sex offender" as a person who:

"(A) (i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A.
22-3717 and amendments thereto; and (ii) at the time of the conviction under (A) (i) has
at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and
amendments thereto in this state or comparable felony under the laws of another state, the
federal government or a foreign government . . . ."

LaBelle pleaded guilty in the instant case to sexual exploitation of a child, which
is a sexually violent crime as defined in K.S.A. 22-3717(d)(2)(H). To qualify as a
persistent sex offender, LaBelle therefore must have at least one prior conviction for a
sexually violent crime.

LaBelle's prior criminal determinations in 91 CR 1043 and 88 JV 1252 were both
for indecent liberties with a child, in violation of K.S.A. 21-3503. Of his numerous prior
crimes, these are the only ones that qualify as "sexually violent crimes." See K.S.A. 22-
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3717(d)(2)(B) ("sexually violent crime" includes indecent liberties with a child in
violation of K.S.A. 21-3503). We recognize that either of these prior criminal
determinations, when combined with LaBelle's guilty plea in the present matter, could
potentially satisfy the conditions for his classification as a "persistent sex offender" under
K.S.A. 21-4704(j). However, our inquiry does not end here. Because the record is
unclear whether the district court classified LaBelle as a persistent sex offender based
upon 91 CR 1043 or instead upon 88 JV 1252, we address each in turn to determine if
either could have been properly used.

91 CR 1043

LaBelle contends that he received an illegal sentence because the court cannot use
91 CR 1043 to both calculate his criminal history score and to classify him as a persistent
sex offender. We agree such a dual use is prohibited.

K.S.A. 21-4710(d)(11) is the relevant statute and provides:

"Prior convictions of any crime shall not be counted in determining the criminal history
category if they enhance the severity level or applicable penalties, elevate the
classification from misdemeanor to felony, or are elements of the present crime of
conviction. Except as otherwise provided, all other prior convictions will be considered
and scored." (Emphasis added.)

We interpreted this provision in conjunction with the persistent sex offender
statute, K.S.A. 21-4704(j), in State v. Zabrinas, 271 Kan. 422, 24 P.3d 77 (2001). A jury
convicted Zabrinas of sexual exploitation of a child. He had two prior convictions
meeting the definition of "sexually violent crimes." The PSI used both to compute his
criminal score as "B," and the district court adopted this computation. It also used one of
these prior sexually violent crimes to classify Zabrinas as a persistent sex offender under
K.S.A. 21-4704(j) and to double his sentence. We rejected the prior conviction's dual
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use, both in computing criminal history and in classifying Zabrinas as a persistent sex
offender, stating:

"K.S.A. 21-4710(d)(11) plainly prevents, in determining criminal history, the counting of
a prior conviction that was used to double the sentence under 21-4704(j). [I]f the
legislature had intended to allow the double counting of the conviction, it could have
placed language in the statute evidencing that intent as it did with predatory sex
offenders. [Citation omitted.]" 271 Kan. at 443-44 (relying on State v. Taylor, 27 Kan.
App. 2d 62, 998 P.2d 123 [2000]).

Consequently, we vacated Zabrinas' sentence. We remanded for a resentencing at which
the sexually violent crime serving to double his sentence as a persistent sex offender was
to be deleted from his criminal history score calculation. 271 Kan. at 444.

Similarly, in State v. Moore, 274 Kan. 639, 55 P.3d 903 (2002), Moore was
convicted of aggravated indecent liberties with a child and kidnapping, both severity
level three felonies. His criminal history score of "B" included his convictions for sexual
exploitation of a child and indecent liberties with a child—his only prior "sexually violent
crimes." The district court classified Moore as a persistent sex offender under K.S.A.
1997 Supp. 21-4704(j). But it failed to specify which of his two prior convictions for
sexually violent crimes supported this finding. Citing Zabrinas and Taylor, we vacated
Moore's sentences and remanded for resentencing because the "district court erred in
failing to remove from Moore's criminal history score the sexually violent crime it [also]
used to qualify Moore as a persistent sex offender under K.S.A. 1997 Supp. 21-4704(j)."
274 Kan. at 651.

In the instant case, the State concedes that 91 CR 1043 cannot be used to compute
LaBelle's criminal history score and to classify him as a persistent sex offender. Instead,
the State contends that the district court only used 91 CR 1043 to calculate LaBelle's
criminal history score and used 88 JV 1252 to classify him as a persistent sex offender.

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It is undisputed that the amended PSI included 91 CR 1043 to compute LaBelle's
criminal history. But there are indications the court may also have used 91 CR 1043 to
classify LaBelle as a persistent sex offender. For example, LaBelle's plea agreement
permitted the State to

"ask that the defendant be sentenced to double to the top number in the appropriate grid
box pursuant to K.S.A. 21-4704(j) the 'persistent sex offender' act, as a result of his prior
conviction in 91 CR 1043." (Emphasis added.)

Unfortunately, the district court never articulated the specific basis for its persistent sex
offender classification. Even after LaBelle filed his postsentencing motions claiming the
district court improperly used 91 CR 1043 in its determination, the court's orders did not
specify how it used the "sexually violent" prior crimes at sentencing. Because this adult
conviction clearly was used in computing LaBelle's criminal history score, it cannot also
be used to classify LaBelle as a persistent sex offender. See Moore, 274 Kan. at 651;
Zabrinas, 271 Kan. at 443-44. Due to the lack of specificity at sentencing, we hold that
the possible dual use of 91 CR 1043 results in reversible error.

88 JV 1252

Having established that the district court could not permissibly use 91 CR 1043 to
classify LaBelle as a persistent sex offender because that conviction clearly was used in
computing his criminal history score, we now turn to the possible use of the juvenile
adjudication in its stead. Stated another way, was 88 JV 1252 properly used to classify
LaBelle as a persistent sex offender?

As another threshold matter, the State claims that LaBelle is precluded from
arguing against the use of 88 JV 1252 because he did not do so until after the Court of
Appeals issued its opinion. It cites State v. Pollman, 286 Kan. 881, 190 P.3d 234 (2008).
There, we declined to address certain issues because they were not presented to the Court
of Appeals. Here, the Court of Appeals considered both 91 CR 1043 and 88 JV 1252.
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They are properly before us for review. While we acknowledge the State is correct that
LaBelle did not directly refute the use of 88 JV 1252 in the persistent sex offender
classification until after the Court of Appeals' opinion, this is due to his understandable
belief that 91 CR 1043 served as the district court's classification basis. The Court of
Appeals' opinion apprised him of the alternative, and he filed a supplemental brief
addressing this point. Through it all, Labelle's general claim of an illegal sentence has
remained the same. He has consistently claimed his persistent sex offender classification
was improperly determined at sentencing, and he appealed his resultant increased
sentence. Therefore, this issue is before us for review.

Having rejected the State's threshold argument, we now turn to the merits. The
State essentially argues that a juvenile adjudication is a terrible thing to waste and 88 JV
1252 could substitute for the twice-used 91 CR 1043 as the basis for classifying LaBelle
as a persistent sex offender. The Court of Appeals agreed with this substitution, stating:

"We agree with LaBelle that because 91 CR 1043 was used to calculate his criminal
history score, it could not be used to classify him as a persistent sex offender. However,
because 88 JV 1252 was unscored and classified as a prior conviction for a sexually
violent crime, it could be used to classify LaBelle as a persistent sex offender."
(Emphasis added.) LaBelle, 2008 WL 3915985, at *1-2.

We disagree. After the Court of Appeals issued its opinion and all briefs were
filed in this case, we released our opinion in State v. Boyer, 289 Kan. 108, 209 P.3d 705
(2009). There, the district court classified the defendant as a persistent sex offender
based upon a prior juvenile adjudication. We analyzed K.S.A. 21-4704(j), the persistent
sex offender statute, in light of K.S.A. 21-4710, which defines "criminal history." We
noted that the language for calculating criminal history in K.S.A. 21-4710 expressly
included juvenile adjudications, whereas it was conspicuously absent in the language for
determining persistent sex offenders in K.S.A. 21-4704(j). We reasoned that the
legislature intentionally excluded this language from K.S.A. 21-4704(j). We stated:
12


"[T]here is no indication that the legislature intended the list of prior convictions set out
in K.S.A. 21-4710(a) to apply to anything other than the determination of criminal history
for the sentencing guidelines grid purposes . . . . It does not say that the following types
of prior convictions should be used for all purposes or even for the purpose of
determining persistent sex offender status. Rather, the reference is evidently limited to
determining criminal history categories for the sentencing guidelines grids." (Emphasis
added.) 289 Kan. at 115.

This distinction served as the basis for our holding in Boyer that "juvenile adjudications
are not to be considered in the determination of persistent sex offender status under
K.S.A. 21-4704(j)." 289 Kan. at 116. We thus conclude, in light of Boyer, that LaBelle's
juvenile adjudication in 88 JV 1252 cannot serve as the basis for classifying him as a
persistent sex offender.

Accordingly, while the district court's exact basis for classifying LaBelle as a
persistent sex offender is unclear, our analysis has revealed that neither 91 CR 1043 nor
88 JV 1252 could have been properly used in this calculation. We acknowledge that
courts are not required to specify at sentencing how particular convictions or
adjudications are used. However, following Zabrinas in 2001 and Boyer in 2009, both of
which establish use limits for determining persistent sex offender classifications, we hold
that the preferred judicial practice is to put on the record the specific use for each
conviction or adjudication, e.g., when both classifying defendant as a persistent sex
offender and calculating his or her criminal history score

We recognize that at LaBelle's resentencing hearing he could potentially receive
the same sentence as before. Specifically, during oral arguments both parties stated that
by substituting 88 JV 1252 for 91 CR 1043 in LaBelle's criminal history, his criminal
history score would remain "B." Assuming this to be true, this substitution would permit
the district court to then use 91 CR 1043 to classify LaBelle as a persistent sex offender
13

and to double the longest term in his presumptive grid block to 256 months'
imprisonment—the exact sentence he received. Despite this possibility, or even
probability, we cannot presently affirm LaBelle's sentence because on remand the district
court may make other findings and impose a different sentence. Moreover, our affirming
on this basis would be akin to sentencing in absentia. See K.S.A. 22-3405(1) (defendant
in felony case shall be present at imposition of sentence).

Consequently, we vacate LaBelle's sentence and remand to the district court for
resentencing on Issue 1.

Issue 2: The district court did not violate LaBelle's Sixth Amendment rights under the
United States Constitution.

LaBelle claims the district court violated his Sixth Amendment rights by
sentencing him to the aggravated term in the grid block without submitting the
aggravating factors to a jury for proof beyond a reasonable doubt. He relies upon
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and
Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007). The
State responds by distinguishing the California sentencing guidelines at issue in
Cunningham from the Kansas sentencing guidelines.

Construction of the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq.,
and determination of the constitutionality of its provisions are questions of law. State v.
Davis, 275 Kan. 107, 124, 61 P.3d 701 (2003); State v. Ivory, 273 Kan. 44, 46, 41 P.3d
781 (2002).

LaBelle's claim ignores our resolution of this issue in State v. Johnson, 286 Kan,
824, 190 P.3d 207 (2008), which controls our result. There, we concluded that "K.S.A.
21-4704(e)(1) grants a judge discretion to sentence a criminal defendant to any term
within the presumptive grid block, as determined by the conviction and the defendant's
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criminal history." 286 Kan. at 851. Thus, "under K.S.A. 21-4721(c)(1), this court is
without jurisdiction to consider [defendant's] challenge to his presumptive sentences even
if those sentences are to the longest term in the presumptive grid block for his
convictions." 286 Kan. at 851-52; see State v. Houston, 289 Kan. 252, 278, 213 P.3d 728
(2009).

Judgment of the district court and the Court of Appeals is affirmed in part and
reversed in part. LaBelle's sentence is vacated, and the case is remanded for
resentencing.