State v. Williams

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,865

STATE OF KANSAS,
Appellee,

v.

JAMES F. WILLIAMS,
Appellant.


SYLLABUS BY THE COURT

1.
The interpretation of the Kansas Sentencing Guidelines Act is subject to unlimited
appellate review.

2.
When interpreting a statute, the fundamental rule to which all other rules are
subordinate is that the intent of the legislature governs if that intent can be ascertained.
The best and only safe rule for ascertaining the intention of the makers of any written law
is to abide by the language they have used.

3.
When calculating a defendant's criminal history that includes out-of-state
convictions and juvenile adjudications under K.S.A. 21-4711, the district court shall
classify the out-of-state crimes as person or nonperson. In designating these crimes as
person or nonperson, the comparable offenses in Kansas shall be determined as of the
date the defendant committed the out-of-state crimes.

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4.
Under the facts of this case, the district court correctly concluded that the
defendant's prior out-of-state conviction is comparable to aggravated burglary under
K.S.A. 21-3716 (Furse 1995) and therefore properly classified the conviction as a person
crime.

Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge. Opinion filed June 13, 2014.
Judgment of the district court is affirmed.

Adam D. Stolte, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger, of
the same office, was on the brief for appellant.

Boyd K. Isherwood, chief appellate attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: James F. Williams appeals the sentence imposed after his Alford plea
to one count of first-degree felony murder and two counts of arson. He alleges the district
court erred in calculating his criminal history score by classifying a prior out-of-state
conviction as a person crime instead of a nonperson crime. This classification elevated
his overall score, which in turn allowed his sentence to be increased in severity.

We reject his arguments and affirm.

FACTS AND PROCEDURAL HISTORY

Williams was charged with one count of first-degree felony murder and two
counts of arson arising from an incident involving domestic violence and a fire at a
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Wichita apartment. Williams asked the district court for a pretrial determination of his
criminal history score because the parties could not agree whether it was B or C. The
dispute centered on how his 1996 Ohio burglary conviction should be classified. If this
conviction were classified as a nonperson crime, his criminal history score would be C; if
classified as a person crime, his score would increase in severity to B.

In 1996, Williams had entered an Ohio bank occupied by other people. While
there, he was observed removing a small knife and stapler from a desk in an office on the
23rd floor. He was arrested at the bank in possession of the items.

Before the Sedgwick County District Court ruled on his pretrial motion to
determine his criminal history score, Williams entered an Alford plea—pleading guilty to
the charges without admitting to the commission of the offenses. See North Carolina v.
Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). His plea was accepted
by the court.

At sentencing, the State argued the facts showed the Ohio crime of conviction was
comparable to Kansas' aggravated burglary, a person crime. Williams responded the facts
failed to show he had acted with the intent to commit theft—which for certain aggravated
burglaries in Kansas can be a required element. According to Williams, the Ohio crime of
conviction and the Kansas crime of aggravated burglary therefore were not comparable
and his Ohio crime was not a person crime in Kansas.

The court rejected Williams' argument and ruled the two crimes were
"substantially similar," making the Ohio conviction a person crime. Using this
classification, the court computed Williams' criminal history score as B, not the lower C.

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The court sentenced Williams to lifetime imprisonment without the possibility of
parole for 20 years for the first-degree felony-murder conviction. It also ordered the
sentences on the two arson convictions, 41 months and 19 months, to run consecutive to
each other and consecutive to the felony-murder sentence, resulting in a controlling
sentence of life plus 60 months.

We have jurisdiction of Williams' appeal under K.S.A. 2013 Supp. 22-3601(b)(3)
(life sentence imposed) and K.S.A. 2013 Supp. 21-6820(e)(3) ("[T]he appellate court
may review a claim that . . . the sentencing court erred . . . in determining the appropriate
classification of a prior conviction . . . for criminal history purposes.").

More facts will be added as necessary to the analysis.

ANALYSIS

Issue: The district court correctly determined that Williams' prior out-of-state conviction
is comparable to aggravated burglary, a person offense, under K.S.A. 21-3716 (Furse
1995).

Williams contends the district court erred by classifying his Ohio crime of
conviction as a person crime comparable to Kansas' aggravated burglary, which led it to
erroneously calculate—and inflate—his criminal history score as B. Williams also argues
the rule of lenity requires the factual ambiguity regarding his out-of-state conviction to be
resolved in his favor. The State responds the Ohio crime of conviction is comparable to
Kansas' aggravated burglary, and it was properly classified as a person crime.
Accordingly, Williams' score was properly calculated as B.

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Standard of review and principles of statutory interpretation

Determining Williams' criminal history score requires us to interpret the relevant
substantive criminal statutes and provisions of the Kansas Sentencing Guidelines Act
(KSGA). Statutory interpretation presents a question of law subject to de novo review.
State v. Murdock, 299 Kan. __, 323 P.3d 846, 848 (2014) (de novo review of disputed
criminal history score).

When interpreting statutes, we abide by the fundamental rule of statutory
interpretation that "'"[T]he intent of the legislature governs if that intent can be
ascertained."'" State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013) (quoting
Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, Syl. ¶ 3, 218 P.3d
400 [2009]). "'[T]he best and only safe rule for ascertaining the intention of the makers of
any written law, is to abide by the language they have used.'" Gannon v. State, 298 Kan.
1107, 1143, 319 P.3d 1196 (2014) (quoting Wright v. Noell, 16 Kan. 601, 607, 1876 WL
1081 [1876]).

Like all criminal statutes, the KSGA must be strictly construed in favor of the
accused. See State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). But the rule of
strict construction is subordinate to the rule that the court's interpretation of the statutory
language must be reasonable and sensible. 288 Kan. at 257-58 (citing State v. Paul, 285
Kan. 658, 662, 175 P.3d 840 [2008]).

Discussion

K.S.A. 21-4711(e) controlled the classification of prior out-of-state convictions
when the district court calculated Williams' criminal history score. It provided in relevant
part:
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"Out-of-state convictions . . . will 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.)

When designating a prior out-of-state crime of conviction as a person or
nonperson offense in Kansas, "the offenses need only be comparable, not identical." State
v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003). There, we held the Kansas crime
that was "the closest approximation" of the out-of-state crime was a comparable offense,
and we explicitly ruled the crimes need not have identical elements to be comparable for
making the person or nonperson designation. 276 Kan. at 179. We have also held "the
comparable offenses in Kansas shall be determined as of the date the defendant
committed the out-of-state crimes." State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d
667 (2010).

Williams committed his Ohio crime in 1996 and was charged and convicted under
Ohio Rev. Code Ann. § 2911.12(A)(1) (Matthew Bender 2010). It provided in relevant
part:

"(A) No person, by force, stealth, or deception, shall do any of the following:

"(1) Trespass in an occupied structure or in a separately secured or separately
occupied portion of an occupied structure, when another person other than an accomplice
of the offender is present, with purpose to commit in the structure or in the separately
secured or separately occupied portion of the structure any criminal offense." (Emphasis
added.)
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The Kansas aggravated burglary statute in effect in 1996, K.S.A. 21-3716 (Furse
1995), provided:

"Aggravated burglary is knowingly and without authority entering into or
remaining within any building, manufactured home, mobile home, tent or other structure
. . . in which there is a human being, with intent to commit a felony, theft or sexual battery
therein." (Emphasis added.)

We begin our analysis by recognizing Williams' appellate brief asserts that his
counsel at the district court "argued that the evidence surrounding the prior conviction
failed to demonstrate an 'intent to permanently deprive' to support the intent to commit a
theft element." His brief adopts this same theme argued at the district court: "The
complaint and facts before the reviewing court here were ambiguous and insufficient to
elevate the offense from a nonperson burglary to a person felony aggravated burglary."
More particularly, he argues: "Under the facts concerning the Ohio offense, there was
insufficient evidence to establish the Kansas element of intent to permanently deprive."

But the evidence-based approach Williams promotes is not the approach used by
Kansas courts. Our courts examine the out-of-state crime of conviction and attempt to
find a comparable Kansas crime. See, e.g., State v. Williams, 291 Kan. at 556-60; State v.
Vandervort, 276 Kan. at 179. And K.S.A. 21-4711(e) plainly stated:

"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.)

In this legal review of criminal statutes, there is no review of the evidence
surrounding the out-of-state conviction. Nor is there review of the identicalness of the
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elements of the crimes identified in the out-of-state and in-state statutes. Rather, the
review is for crime comparability. See Vandervort, 276 Kan. at 179 ("Vandervort
confuses the term 'comparable' with the concept of identical elements of the crime. For
purposes of determining criminal history, the offenses need only be comparable, not
identical."). Accordingly, we reject Williams' misplaced argument that the Ohio crime of
conviction contains insufficient evidence to establish the Kansas element of intent to
permanently deprive.

We additionally reject his sole remaining argument in his brief because it also
suggests an evidentiary foundation. "The ambiguity in the Ohio complaint, and other
facts surrounding the prior Ohio conviction, required the district court to apply the rule
on lenity and classify the prior conviction as a nonperson felony." Moreover, while this
rule requires a court to resolve ambiguities in a defendant's favor, it only applies when
reasonable doubt exists about a statute's meaning and application. State v. Coman, 294
Kan. 84, 97, 273 P.3d 701 (2012). The language of K.S.A. 21-4711(e) is not ambiguous.

Even if we allowed Williams' evidence-based argument, we would be compelled
to reject its flawed logic. Simply put, the presence of the element of intent to permanently
deprive—to support the intent to commit a theft—does not distinguish the aggravated
burglary determined by the district court from the simple burglary determination that
Williams requests. And it does not distinguish a person crime from a nonperson crime as
he contends.

For while there are differing severity levels for the various types of burglary under
the 1995 version of K.S.A. 21-3715—subsections (a) (severity level 7 person felony), (b)
(severity level 7 nonperson felony), and (c) (severity level 9 nonperson felony)—all these
burglaries still required an "intent to commit a felony, theft or sexual battery." (Emphasis
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added.) So did the crime of aggravated burglary under the 1995 version of K.S.A. 21-
3716 (severity level 5 person felony).

We conclude the district court correctly determined Williams' Ohio crime of
conviction was comparable to aggravated burglary under K.S.A. 21-3716 (Furse 1995).
Accordingly, it properly classified his Ohio conviction as a person crime, resulting in a
criminal history score of B and supporting his controlling sentence of life plus 60 months.

The judgment of the district court is affirmed.