State v. Smith

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No. 108,476

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

BRYAN PAUL SMITH,
Appellee.


SYLLABUS BY THE COURT

K.S.A. 2011 Supp. 21-6810 looks to the offense to determine whether a prior
juvenile adjudication has decayed. Because the nature of the offense never changes, if a
person commits a crime after he or she turns 25, his or her prior misdemeanor juvenile
adjudications decay under K.S.A. 2011 Supp. 21-6810(d)(4)(C) and cannot be used in the
calculation of his or her criminal history score. It is irrelevant that the misdemeanor
juvenile adjudications have, at some prior time, been converted to person felony
adjudications for sentencing purposes under K.S.A. 2011 Supp. 21-6811(a).

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed June 21,
2013. Affirmed.

Sherri L. Becker, assistant county attorney, and Derek Schmidt, attorney general, for appellant.

Janine Cox, of Kansas Appellate Defender Office, for appellee.

Before ARNOLD-BURGER, P.J., GREEN, J., and LARSON, S.J.

ARNOLD-BURGER, J.: The State appeals the district court's decision to modify
Bryan Paul Smith's criminal history score from A to B after determining that his two
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converted person felony adjudications decayed under K.S.A. 2011 Supp. 21-6810 and,
therefore, could not be considered in determining his criminal history score. Because we
find that the statute, K.S.A. 2011 Supp. 21-6811(a), under which Smith's juvenile
adjudications were converted from six person misdemeanor adjudications to two person
felony adjudications, did not change the nature of the offenses, they were still subject to
the decay provisions of K.S.A. 2011 Supp. 21-6810, and the district court did not err in
so finding. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Smith was charged with and pled no contest to one count of contributing to a
child's misconduct, three counts of burglary of a motor vehicle, five counts of theft of
property, one count of possession of methamphetamine, and one count of possession of
drug paraphernalia. Although Smith was convicted of all of the crimes, he objected to his
criminal history score. Over the State's objection, the district court modified Smith's
criminal history score from A to B after determining Smith's six prior misdemeanor
juvenile adjudications had decayed because his current crimes were committed after he
turned 25 years of age. The district court sentenced Smith to a controlling sentence of 41
months' imprisonment.

The State filed a timely appeal challenging the district court's decision to modify
Smith's criminal history score from A to B.

ANALYSIS

The State contends that the district court erred when it modified Smith's criminal
history score from A down to B based on the determination that Smith's six misdemeanor
juvenile adjudications, which had been converted to two person felony adjudications in a
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prior case, had decayed and could no longer be considered in determining his criminal
history score.

This issue requires the interpretation of K.S.A. 2011 Supp. 21-6810 and K.S.A.
2011 Supp. 21-6811. Interpretation of a statute is a question of law over which appellate
courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).

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). 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. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).

As a general rule, appellate courts must strictly construe criminal statutes in favor
of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor
of the accused, subject to the rule that judicial interpretation must be reasonable and
sensible to effect legislative design and intent. State v. Coman, 294 Kan. 84, 96, 273 P.3d
701 (2012).

Our legislature has set out several rules for determining an offender's criminal
history classification for sentencing purposes. If an offender is over the age of 25 at the
time of the crime of conviction, any prior "juvenile adjudication . . . for an offense . . .
which would be a misdemeanor if committed by an adult" is not considered in
determining the offender's criminal history classification. (Emphasis added.) K.S.A. 2011
Supp. 21-6810(d)(4)(C). This is referred to as the "decay factor." See K.S.A. 2011 Supp.
21-6803(e). There is no argument that Smith was 25 years of age at the time the current
crimes were committed. There is also no dispute that Smith had six juvenile adjudications
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as part of his criminal history that would have been misdemeanors if committed by an
adult. Accordingly, under the plain language of the statute, those six adjudications would
decay, or not be considered, in determining Smith's criminal history classification in this
case.

But in 2010, when Smith was being sentenced in another case, another legislative
sentencing rule came into play. At that time, Smith was under the age of 25, and pursuant
to K.S.A. 21-4711(a) (now K.S.A. 2012 Supp. 21-6811[a]) his six juvenile adjudications
were rated as two person felony adjudications for sentencing purposes. The statute
specifically provides that "[e]very three prior adult convictions or juvenile adjudications
of class A and class B person misdemeanors in the offender's criminal history, or any
combination thereof, shall be rated as one adult conviction or one juvenile adjudication
of a person felony for criminal history purposes." (Emphasis added.) K.S.A. 2011 Supp.
21-6811(a). The same statute that allows for the decay of prior juvenile adjudications that
would have been misdemeanors if committed by an adult also prohibits the decay of "a
juvenile adjudication for an offense which would constitute a person felony if committed
by an adult." (Emphasis added.) K.S.A. 2011 Supp. 21-6810(d)(3)(B).

The State relies on K.S.A. 2011 Supp. 21-6810(d)(3)(B) to argue that because
Smith's six juvenile misdemeanor adjudications were converted in the 2010 case into two
person felony adjudications for criminal history purposes, then those two converted
person felony adjudications do not decay and can still be used in calculating Smith's
current criminal history score in the present case. We disagree.

After examining the statutory language used, we are guided by two important and
common words in both of the statutes. The first is the word "offense" in K.S.A. 2011
Supp. 21-6810(d)(3)(B) and (d)(4). In both of these subsections, the term "offense" is
used when discussing whether a juvenile adjudication decays or not. Black's Law
Dictionary defines "offense" as a violation of the law. Black's Law Dictionary 1186 (9th
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ed. 2009). "The terms 'crime,' 'offense,' and 'criminal offense' are all said to be
synonymous, and ordinarily used interchangeably." 22 C.J.S., Criminal Law § 3. This
suggests that the legislature was referring to the crime itself and not what the crime was
later classified as for criminal history purposes.

The second important word is "rated" in K.S.A. 2011 Supp. 21-6811(a). To rate an
item is to give it a proportional or relative value. See Black's Law Dictionary 1375 (9th
ed. 2009). This term suggests that three juvenile adjudications are merely given the
proportional value of one person felony adjudication for sentencing purposes. This statute
does not change the underlying nature of the original offenses and their subsequent
adjudications. In essence, K.S.A. 2011 Supp. 21-6811 creates a formula the courts use to
calculate a defendant's criminal history score and does not change the nature of any prior
offenses. Thus, because the nature of the prior offense never changes and because K.S.A.
2011 Supp. 21-6810 looks to the prior offense to determine whether an adjudication
decays, when Smith committed the current crimes after he turned 25, his prior
misdemeanor juvenile adjudications decayed under K.S.A. 2011 Supp. 21-6810(d)(4)(C)
and cannot be used in the calculation of his criminal history score. It is irrelevant that the
misdemeanor juvenile adjudications have, at some prior time, been converted to person
felony adjudications for sentencing purposes under K.S.A. 2011 Supp. 21-6811(a).

Accordingly, the district court did not err when it reduced Smith's criminal history
score from A down to B once it considered the decay of his misdemeanor juvenile
adjudications.

Affirmed.