State v. Waggoner

1

No. 111,548

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ERIC WAGGONER,
Appellant.


SYLLABUS BY THE COURT

1.
The holding in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (mod. by
Supreme Court order September 19, 2014), is limited to the classification for criminal
history purposes of out-of-state convictions committed prior to the enactment of the
Kansas Sentencing Guidelines Act.

2.
In designating a crime as person or nonperson for criminal history purposes, courts
should focus on the nature of the offense as set forth in the statutory elements of the
crime rather than on the prior classification of the crime.

3.
Under the facts of this case, the district court did not err in classifying the
defendant's prior Kansas juvenile adjudication of attempted aggravated battery as a
person felony for criminal history purposes.

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed January 30,
2015. Affirmed.

2

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Patrick J. Hurley, assistant district attorney, Matt Dennert, legal intern, Charles E. Branson,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.

MALONE, C.J.: Eric Waggoner appeals his sentence following his convictions of
possession of methamphetamine and marijuana. Waggoner argues that, in light of our
Supreme Court's decision in State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (mod.
by Supreme Court order September 19, 2014), the district court erred in classifying his
prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for
criminal history purposes. In Murdock, our Supreme Court held that when calculating a
defendant's criminal history that includes out-of-state convictions committed prior to the
enactment of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., the
out-of-state convictions must be classified as nonperson offenses. 299 Kan. 312, Syl. ¶ 5.

Waggoner argues that the holding in Murdock applies to in-state pre-KSGA
convictions as well. We disagree with Waggoner; the holding in Murdock is limited to
the classification of out-of-state pre-KSGA convictions for criminal history purposes and
does not apply to in-state convictions. Thus, the district court did not err in classifying
Waggoner's prior Kansas juvenile adjudication of attempted aggravated battery as a
person felony for criminal history purposes.

The facts are straightforward. On October 17, 2013, Waggoner pled no contest to
one count of possession of methamphetamine and one count of possession of marijuana.
At the sentencing hearing, the district court found that Waggoner's criminal history score
was "B"—based in part on an April 6, 1993, juvenile adjudication in Ford County,
Kansas, of attempted aggravated battery. Waggoner did not contest his criminal history
3

score at sentencing. The district court sentenced Waggoner to a controlling term of 34
months' imprisonment with 12 months' postrelease supervision. Waggoner timely
appealed the district court's judgment.

On appeal, Waggoner contends that the district court erred in calculating his
criminal history score because that calculation included the erroneous classification of his
April 1993 juvenile adjudication of attempted aggravated battery as a person felony.
Some background information is necessary to understand Waggoner's argument. Kansas
did not begin categorizing crimes as person or nonperson offenses until 1993 when the
KSGA was adopted. See L. 1992, ch. 239, sec. 1 (KSGA effective July 1, 1993);
Murdock, 299 Kan. at 315. Generally, person crimes are weighted more heavily than
nonperson crimes for criminal history purposes. 299 Kan. at 314. In Murdock, our
Supreme Court held that all out-of-state pre-KSGA crimes must be classified as
nonperson felonies for criminal history purposes. 299 Kan. 312, Syl. ¶ 5.

Waggoner now argues that the holding in Murdock applies to in-state pre-KSGA
convictions as well. Thus, because Waggoner's juvenile adjudication in Ford County,
Kansas, of attempted aggravated battery occurred on April 6, 1993—prior to the effective
date of the KSGA and before Kansas began classifying offenses as either person or
nonperson—Waggoner argues that the district court erred in classifying the offense as a
person felony for criminal history purposes.

In response, the State first argues that in light of the Kansas Supreme Court's order
modifying its original opinion in Murdock—an order issued after Waggoner filed his
initial appellate brief—Murdock does not apply to in-state pre-KSGA convictions. The
State also points out that Kansas courts have long classified in-state pre-KSGA crimes as
either person or nonperson for criminal history purposes according to the comparable
crime's post-KSGA classification. The State argues that the legislative intent behind the
KSGA requires this court to follow precedent and reject Waggoner's argument.
4

The parties agree that whether a prior conviction or adjudication is properly
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. Murdock, 299 Kan. at 314.

Waggoner candidly concedes that he did not object to his criminal history score in
the district court. But as Waggoner notes, by challenging the accuracy of his criminal
history score, he alleges an illegal sentence, and this court may consider his argument for
the first time on appeal. See State v. Kelly, 298 Kan. 965, 975-76, 318 P.3d 987 (2014)
(stating that a court "unquestionably" may entertain an illegal sentence allegation for the
first time on appeal); State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (stating that
where a criminal history score is incorrect, the resulting sentence is an illegal sentence).
The State does not dispute that Waggoner may raise this issue for the first time on appeal.

We will begin our analysis by attempting to summarize our Supreme Court's
decision in Murdock. Murdock pled guilty to two counts of aggravated robbery and one
count of robbery committed in 2008. His criminal history included convictions of robbery
in Illinois in 1984 and 1990 and a robbery conviction in Kansas in 1996. The district
court classified all three prior convictions as person offenses, which placed Murdock into
criminal history category A, and sentenced him to a controlling term of 233 months'
imprisonment. This court affirmed the district court in State v. Murdock, No. 104,533,
2011 WL 4031550, at *3 (Kan. App. 2011) (unpublished opinion), rev'd, 299 Kan. 312,
323 P.3d 846 (2014).

The Kansas Supreme Court granted a petition for review. Before the Supreme
Court, Murdock argued that the district court should have classified the Illinois crimes as
nonperson offenses because (1) K.S.A. 21-4710(d)(8) required such a classification and
(2) "the legislature intended to designate pre-[KSGA] convictions as nonperson
offenses." 299 Kan. at 314. Our Supreme Court began its analysis by addressing K.S.A.
5

21-4711(e), recodified as K.S.A. 2014 Supp. 21-6811(e), which governs the classification
of out-of-state convictions for criminal history purposes. 299 Kan. at 314. That statute
provides in pertinent part:

"Out-of-state convictions and juvenile adjudications will be used in classifying
the offender's criminal history. An out-of-state crime will be classified as either felony or
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." K.S.A. 21-4711(e).

Murdock did not dispute that his out-of-state robbery convictions were comparable
to the Kansas crime of robbery. The issue was which version of the Kansas robbery
statute should be used to classify the Illinois convictions as person or nonperson. The
Kansas robbery statute in effect when Murdock committed the Illinois crimes defined
robbery as a "class C felony," with no person or nonperson designation. 299 Kan. at 315.
However, the Kansas robbery statute in effect when Murdock committed his 2008 Kansas
crimes defined robbery as a person felony. 299 Kan. at 315.

Murdock argued that the comparable robbery statute was the statute in effect at the
time he committed the Illinois crimes. He asserted that using that statute would result in a
classification of the crimes as nonperson pursuant to K.S.A. 21-4710(d)(8), recodified as
K.S.A. 2014 Supp. 21-6810(d)(6), which states that unless otherwise provided by law,
unclassified felonies and misdemeanors are scored as nonperson crimes for criminal
history calculation. Murdock also noted the Kansas Supreme Court's holding in State v.
Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010), that "the comparable Kansas
offenses must be determined as of the date the defendant committed the out-of-state
crimes." Murdock, 299 Kan. at 315.

6

We will briefly turn to our Supreme Court's decision in Williams. In that case,
Williams pled guilty to two counts of identity theft committed in 2005 and 2006, and her
criminal history included five state of Washington convictions of identity theft committed
in 2001 and 2002. At the time the Washington crimes were committed, Kansas classified
identity theft as a person offense, but by the time Williams committed and was sentenced
for her Kansas crimes, Kansas had reclassified identity theft as a nonperson offense.

The issue in Williams was whether the district court should classify the
Washington crimes for criminal history purposes as of the date Williams committed the
Washington crimes, the date she committed the Kansas crimes, or the date of her Kansas
sentencing. The Williams court reasoned 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." 291 Kan. at
560. Because Kansas classified the crime of identity theft as a person offense at the time
the Washington crimes were committed, the court concluded the Washington crimes
should be classified as person offenses for criminal history purposes. 291 Kan. at 562.

The Murdock court noted that the Court of Appeals has followed Williams when
the prior out-of-state offense was committed after the KSGA was adopted in 1993, citing
State v. McKinney, No. 102,906, 2010 WL 5185779, at *1 (Kan. App. 2010)
(unpublished opinion). 299 Kan. at 316. McKinney was a case exactly like Williams. The
defendant pled no contest in 2009 to attempted failure to register as a sex offender, and
his criminal history included a 2002 Oklahoma conviction for failing to register as a sex
offender. In 2002, failure to register as a sex offender was classified in Kansas as a
nonperson felony, but by 2009, Kansas had reclassified the offense as a person felony.
Following Williams, the McKinney court held that the comparable Kansas offense must
be determined as of the date the defendant committed the out-of-state crime; thus, the
7

prior Oklahoma conviction should be classified as a nonperson felony. 2010 WL
5185779, at *1.

However, the Supreme Court in Murdock discerned that the Court of Appeals has
adopted a "different rule" when the prior out-of-state crimes were committed before the
adoption of the KSGA. 299 Kan. at 316. The Court of Appeals panel in Murdock had
stated that "'Kansas courts have routinely classified pre-1993 offenses as either person or
nonperson for criminal history purposes by comparing the offenses to current guideline
offenses.'" (Emphasis added.) 299 Kan. at 316. The Supreme Court ultimately determined
that this "different rule" used by the Court of Appeals for pre-1993 offenses is contrary to
the holding in Williams. Murdock, 299 Kan. at 317-18.

As stated above, Murdock argued that because the comparable pre-KSGA Kansas
statute did not classify robbery as person or nonperson, his Illinois convictions should be
scored as nonperson offenses pursuant to K.S.A. 21-4710(d)(8), which requires
nonperson classification for "unclassified felonies and misdemeanors." 299 Kan. at 318.
But our Supreme Court deemed Murdock's argument misplaced, stating that K.S.A. 21-
4710(d)(8) was likely 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. 299
Kan. at 318. The court determined it was unlikely the legislature intended that K.S.A. 21-
4710(d)(8) governed all pre-1993 convictions. 299 Kan. at 319.

The Murdock court then noted "there 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."
Despite its characterization of Murdock's reliance on K.S.A. 21-4710(d)(8) as misplaced,
the court held 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
8

precedent." The court further expressly "overrule[d] all Court of Appeals decisions
applying the rule recited by the Court of Appeals panel in this case." 299 Kan. at 319.

After the Supreme Court issued its opinion in Murdock, the State filed a motion
for modification asking, among other things, that the court limit its holding to the
classification of out-of-state pre-KSGA crimes for criminal history purposes. The court
granted argument on the motion and on September 19, 2014, ordered its opinion
modified, altering the sentence "We recognize this rule results in the classification of all
pre-1993 crimes as nonperson felonies—an outcome the State characterizes as
unreasonable" to state "We recognize this rule results in the classification of all out-of-
state pre-1993 crimes as nonperson felonies—an outcome the State characterizes as
unreasonable." (Emphasis added.) The rest of the opinion remained unchanged.

As the State argues, our Supreme Court's modification of Murdock signals that the
court's holding is limited to the classification of out-of-state pre-KSGA offenses for
criminal history purposes. The only modification the Supreme Court made was to add the
words "out-of-state" to the sentence in which it explicitly recognized that Murdock would
result in the classification of pre-KSGA crimes as nonperson felonies. This language in
the body of the opinion is now consistent with the syllabus which states:

"When calculating a defendant's criminal history that includes out-of-state
convictions committed prior to enactment of the Kansas Sentencing Guidelines Act,
K.S.A. 21-4701 et seq., the out-of-state convictions must be classified as nonperson
felonies. Prior caselaw contrary to this holding is overruled. 299 Kan. 312, Syl. ¶ 5.

Also supporting the conclusion that the holding in Murdock is limited to out-of-
state pre-KSGA convictions is the fact that Murdock's analysis began by addressing
K.S.A. 21-4711(e), which "governs the classification of out-of-state crimes/convictions."
299 Kan. at 314. By its plain language, K.S.A. 21-4711(e) does not apply to in-state
9

offenses or convictions. Because the statute upon which the Murdock court based its
analysis does not apply to in-state convictions, neither should the Murdock holding. See
State v. Dickey, 50 Kan. App. 2d 468, 480, 329 P.3d 1230 (2014) (describing the holding
and analysis in Murdock as "firmly tethered" to the text of K.S.A. 21-4711[e] and thus
limited to out-of-state convictions), rev. granted 300 Kan. ___ (October 31, 2014).

As the State further argues, Williams—the other driving force behind Murdock—is
significantly distinguishable from Waggoner's case. Like Murdock, Williams addressed a
district court's determination of whether prior out-of-state convictions—Washington
convictions of identity theft—were person or nonperson offenses for criminal history
purposes. Williams also involved the peculiar fact that at the time the Washington crimes
were committed, Kansas classified identity theft as a person offense, but by the time
Williams committed and was sentenced for her Kansas crimes, Kansas had reclassified
identity theft as a nonperson offense.

Williams did not involve a situation where the court was trying to classify a
Kansas pre-KSGA offense as person or nonperson for criminal history purposes; the prior
crimes in question were all committed post-1993. The State adopts the argument set forth
by the dissent in Murdock that the application of Williams' holding should be narrowed
"to the facts of that scenario, i.e., when there is a change in the person/nonperson offense
designation of a prior conviction—not to all pre-1993 offenses for which the designation
of person/nonperson crimes was neither envisioned nor determined." 299 Kan. at 322
(Rosen, J., dissenting).

The State also argues that Kansas courts have long classified in-state pre-KSGA
crimes as either person or nonperson for criminal history purposes according to the
comparable crime's post-KSGA classification. The State argues that the legislative intent
behind the KSGA requires this court to follow precedent and reject Waggoner's
argument. But the State ignores the last paragraph of the Murdock opinion in which the
10

court expressly "overrule[d] all Court of Appeals decisions applying the rule recited by
the Court of Appeals panel in this case." (Emphasis added.) 299 Kan. at 319. It is not
clear exactly what our Supreme Court in Murdock meant by "the rule" or by its sweeping
statement overruling all Court of Appeals decisions applying the rule.

Unfortunately, review of this court's decision in Murdock does not clarify our
Supreme Court's statement. This court's opinion in Murdock was brief; it succinctly
rejected Murdock's arguments and followed State v. Boster, No. 101,009, 2009 WL
3738490, at *4 (Kan. App. 2009) (unpublished opinion), and State v. Henderson, No.
100,371, 2009 WL 2948657, at *2-3 (Kan. App. 2009) (unpublished opinion), rev. denied
290 Kan. 1099 (2010). See Murdock, 2011 WL 4031550, at *2-3. Boster and Henderson
had previously rejected Murdock's proposed interpretation of K.S.A. 21-4710(d)(8),
reasoning that it would contravene the purposes of the KSGA and this court's traditional
analysis and resolution of the issue. See Murdock, 2011 WL 4031550, at *2-3.

The Court of Appeals panel in Murdock did not expressly state a "rule" that
controlled the outcome, but as our Supreme Court later noted, this court did recognize
that "Kansas courts have routinely classified pre-1993 offenses as either person or
nonperson for criminal history purposes by comparing the offenses to current guidelines
offenses." 2011 WL 4031550, at *2. This statement appears to be the closest thing to a
"rule" in this court's Murdock opinion, especially in light of this court's adoption of the
rationale in Henderson and Boster, which this court summarized by stating that "[b]oth
cases determined that pre-1993 offenses should be classified as person or nonperson
crimes by considering comparable Kansas offenses." 2011 WL 4031550, at *2.

The problem with the Supreme Court's statement in Murdock overruling all
decisions applying "the rule" recited by the Court of Appeals panel in that case is that the
rule itself makes no distinction between in-state and out-of-state pre-KSGA offenses.
Prior to Murdock, the distinction was not considered important. Application of "the rule"
11

did not turn on the location of the prior offense. The question becomes whether Murdock
expressly overruled all decisions applying the rule to classify pre-KSGA convictions for
criminal history purposes, including in-state pre-KSGA convictions, or whether Murdock
only overruled decisions applying the rule to classify out-of-state pre-KSGA convictions.

Prior to Murdock, this court had issued several decisions determining the
person/nonperson classification of out-of-state pre-KSGA offenses for criminal history
purposes by comparing the offenses to current guidelines offenses. See State v. Mitchell,
No. 104,833, 2012 WL 1649831, at *7 (Kan. App. 2012) (unpublished opinion)
(affirming designation as person felony of 1990 Colorado arson conviction), overruled by
Murdock, 299 Kan. 312; State v. Speake, No. 105,641, 2012 WL 1649878, at *3 (Kan.
App. 2012) (unpublished opinion) (affirming designation as person felony of 1992
California conviction of infliction of corporal punishment on a spouse or cohabitant),
overruled by Murdock, 299 Kan. 312; State v. Sigley, No. 105,687, 2012 WL 924813, at
*1-2 (Kan. App. 2012) (unpublished opinion) (affirming designation as person offense of
1985 Ohio aggravated burglary), overruled by Murdock, 299 Kan. 312. Clearly, this
court's decisions in Mitchell, Speake, and Sigley are now overruled by Murdock.

However, prior to Murdock, this court had issued other decisions determining the
person/nonperson classification of in-state pre-KSGA offenses for criminal history
purposes by comparing the offenses to current guidelines offenses. See, e.g., Boster, 2009
WL 3738490, at *5 (listing prior Kansas convictions and affirming person designation
after comparison to current guidelines offenses). Other prior Court of Appeals decisions
addressing this issue do not explicitly identify the prior offenses as in-state or out-of-
state. See State v. Smith, 49 Kan. App. 2d 19, 20-22, 303 P.3d 716 (2013) (affirming
designation as person offenses of "pre-Guidelines convictions for aggravated burglary
and robbery"), rev. granted 300 Kan. ___ (October 31, 2014); State v. Mims, No.
103,044, 2011 WL 4563068, at *6 (Kan. App. 2011) (unpublished opinion) (affirming
designation as person felonies of 1970's convictions of attempted aggravated battery,
12

aggravated battery, and attempted aggravated robbery), rev. denied 294 Kan. 946 (2012);
Henderson, 2009 WL 2948657, at *2-3 (affirming designation as a person felony of "a
juvenile adjudication in 1975 for aggravated indecent solicitation"). It is unclear whether
the Supreme Court's decision in Murdock overrules Boster, Smith, Mims, and Henderson.

Murdock itself involved only out-of-state pre-KSGA offenses. As previously
indicated, the court's syllabus states that "[w]hen calculating a defendant's criminal
history that includes out-of-state convictions committed prior to enactment of the
[KSGA], the out-of-state convictions must be classified as nonperson felonies. Prior
caselaw contrary to this holding is overruled." (Emphasis added.) 299 Kan. 312, Syl. ¶ 5.
Because Murdock's holding applied only to out-of-state pre-KSGA offenses and the
decision overruled prior caselaw contrary to this holding, it would appear that prior Court
of Appeals' decisions involving in-state pre-KSGA offenses have not been overruled.

This brings us back to Waggoner's principal claim on appeal that the district court
erred in classifying his April 1993 juvenile adjudication of attempted aggravated battery
committed in Ford County, Kansas, as a person felony for criminal history purposes.
Waggoner argues that because his juvenile adjudication occurred prior to the effective
date of the KSGA and before Kansas began classifying offenses as either person or
nonperson, the district court should have classified the offense as nonperson.

As noted in Murdock, the classification of out-of-state convictions and juvenile
adjudications for criminal history purposes is governed by K.S.A. 21-4711(e). However,
there is no specific provision in the KSGA that expressly governs the classification of in-
state convictions and juvenile adjudications for criminal history purposes. Thus, we must
look to the overall design and purposes of the KSGA and construe the act according to its
spirit and reason. The most fundamental rule of statutory construction is that the intent of
the legislature governs if that intent can be ascertained. State v. Williams, 298 Kan. 1075,
1079, 319 P.3d 528 (2014). While criminal statutes are generally strictly construed
13

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).

The sentencing guidelines are based on two controlling factors: crime severity and
criminal history of the defendant. See K.S.A. 2014 Supp. 21-6804(c). In scoring criminal
history, a distinction is made between person crimes and nonperson crimes. See K.S.A.
2014 Supp. 21-6809; Murdock, 299 Kan. at 314. Under the sentencing guidelines,
designation of a crime as person or nonperson depends upon the nature of the offense.
Crimes which inflict, or could inflict, physical or emotional harm to another generally are
designated as person crimes. Crimes which inflict, or could inflict, damage to property
generally are designated as nonperson crimes. See 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). Generally, person crimes are weighted more heavily
than nonperson crimes for criminal history purposes. See Murdock, 299 Kan. at 314.

Our Supreme Court has noted the following principles and legislative purposes of
the KSGA: reserving prison space for violent offenders; basing the severity of the
sanctions on the harm inflicted; uniformity in sanctions; clear, understandable penalties;
reservation of incarceration for "serious violent offenders who present a threat to public
safety"; rehabilitation of those incarcerated and making rehabilitative programs available
in local communities as well as in prison; allowing policymakers to allocate resources;
reducing prison overcrowding; protecting public safety; and standardizing sentences so
that similarly situated offenders are treated the same. State v. Favela, 259 Kan. 215, 233-
34, 911 P.2d 792 (1996).

Waggoner's argument that his prior juvenile adjudication of attempted aggravated
battery should be scored as a nonperson felony for criminal history purposes runs counter
to the overall design and legislative purposes of the KSGA. Waggoner does not dispute
14

that the offense of attempted aggravated battery inflicts, or could inflict, physical or
emotional harm to another person. He also does not dispute that the offense has been
classified as a person felony since the KSGA was enacted in 1993.

Kansas did not begin categorizing crimes as person or nonperson offenses until
1993 when the KSGA was adopted. See L. 1992, ch. 239, sec. 1 (KSGA effective July 1,
1993); Murdock, 299 Kan. at 315. When the KSGA initially went into effect, all prior
convictions were pre-KSGA convictions. Obviously, the legislature never intended all
Kansas pre-KSGA convictions and juvenile adjudications to be scored as nonperson
offenses for criminal history purposes. As the dissenting opinion in Murdock stated:

"The majority's holding [if applied to in-state convictions] would mean that
almost no crime committed before 1993, no matter how violent or serious, could be
specified as a person felony in scoring the criminal history for a crime committed post-
1993. This simply is an intolerable result and completely compromises a sentencing
structure that has as its primary goal protecting society from its most violent criminals."
299 Kan. at 322 (Rosen, J., dissenting).

In this particular case, we are attempting to classify a prior Kansas juvenile
adjudication of attempted aggravated battery as a person or nonperson offense for
criminal history purposes. In attempting to classify a Kansas pre-KSGA crime as person
or nonperson, a court does not refer to comparable offenses as is the case in classifying
out-of-state crimes; rather, a court looks to the crime itself as defined by the statute that
was violated. Prior to the enactment of the KSGA, aggravated battery was defined as "the
unlawful touching or application of force to the person of another with intent to injure
that person or another . . . ." See K.S.A. 21-3414 (Ensley 1988). Attempted aggravated
battery, prior to the enactment of the KSGA, was classified in Kansas as a class D felony.
See K.S.A. 21-3414 and 21-3301(c)(3) (Ensley 1988).

15

For obvious reasons, attempted aggravated battery was not classified as either a
person or a nonperson crime prior to the enactment of the KSGA—the need for such a
classification did not exist. But in designating a crime as person or nonperson for
criminal history purposes, courts should focus on the nature of the offense as set forth in
the statutory elements of the crime rather than on the prior classification of the crime.
Attempted aggravated battery is, and always has been, a crime which inflicts, or could
inflict, physical or emotional harm to another person.

A Kansas pre-KSGA juvenile adjudication of attempted aggravated battery need
not be scored as a nonperson felony for criminal history purposes pursuant to K.S.A. 21-
4710(d)(8) simply because the offense was classified as a Class D felony prior to the
enactment of the sentencing guidelines. The Murdock court made it clear that K.S.A. 21-
4710(d)(8), which addresses unclassified felonies and misdemeanors, was never intended
to govern all pre-1993 convictions. 299 Kan. at 319. Attempted aggravated battery has
never been an unclassified felony either before or after the enactment of the KSGA.

From our vantage point on the Court of Appeals, it appears that Kansas trial
judges have always scored Kansas pre-KSGA convictions as person or nonperson for
criminal history purposes based on the nature of the offense as set forth in the statutory
elements of the crime—and for good reason—it makes no sense to determine criminal
history in any other way. 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. State v.
Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012). The courts must construe statutes to avoid
unreasonable or absurd results and presume the legislature does not intend to enact
meaningless legislation. State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014).

Williams teaches that courts should use the date of commission of the prior crime
to calculate the defendant's criminal history and to determine the person/nonperson
16

classification of the prior offense. 291 Kan. at 560. Although we do not know the exact
date that Waggoner committed his attempted aggravated battery, we know that he was
adjudicated for the offense on April 6, 1993. At that time, aggravated battery in Kansas
was a crime which would inflict, or could inflict, physical or emotional harm to another
person. See K.S.A. 21-3414 (Ensley 1988). An attempt to commit a crime is treated as a
person or nonperson crime in accordance with the designation assigned to the underlying
crime. See K.S.A. 2014 Supp 21-6811(g); Fifer, 20 Kan. App. 2d at 16. Therefore,
Waggoner's pre-KSGA juvenile adjudication in Ford County, Kansas, of attempted
aggravated battery should be scored as a person felony for criminal history purposes. This
result is consistent with the overall design and legislative purposes of the KSGA and is
not contrary to the language of any specific statute or Kansas Supreme Court precedent.

Finally, Waggoner argues that the district court violated his constitutional rights
under the Sixth and Fourteenth Amendments to the United States Constitution as
recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000), by sentencing him based in part on his criminal history without first requiring the
State to allege the criminal history in a charging document and prove it beyond a
reasonable doubt to a jury. As Waggoner concedes, our Supreme Court already has
decided this issue contrary to his position. See State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d
781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent
some indication that the court is departing from its earlier position. See State v. Hall, 298
Kan. 978, 983, 319 P.3d 506 (2014). There is no indication that our Supreme Court is
departing from its position in Ivory.

Affirmed.