State v. Anderson

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NOT DESIGNATED FOR PUBLICATION

No. 114,036

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRODERICK ANDERSON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed July 8, 2016.
Sentence vacated and case remanded with directions.

Carl F.A. Maughan and Sean M.A. Hatfield, of Maughan Law Group LC, of Wichita, for
appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., HILL and BRUNS, JJ.

Per Curiam: Broderick Anderson appeals the summary denial of his motion to
correct an illegal sentence. On appeal, he argues that his two 1993 juvenile adjudications
for burglary were improperly scored as person felonies. The presentence report indicates,
however, that the juvenile adjudications were for violations of K.S.A. 21-3715(a), which
is classified as a person felony. Unfortunately, the record does not definitively indicate
when Anderson committed the two burglaries. As a result, we vacate Anderson's sentence
and remand this matter to the district court for resentencing.
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FACTS

In August 2000, the State charged Anderson as an adult with two counts of
aggravated burglary, two counts of aggravated robbery, one count of kidnapping, and one
count of felony theft. Prior to trial, the State amended the complaint to allege four
additional counts of kidnapping. Ultimately, a jury found Anderson guilty of all charges,
and the Court of Appeals subsequently upheld his convictions. State v. Anderson, No.
87,210, unpublished opinion filed May 24, 2002, rev. denied 274 Kan. 1114 (2002).

The presentence investigation (PSI) report indicated that Anderson had two
juvenile burglary adjudications in 1993 for "Burglary (Residence)" pursuant to K.S.A.
21-3715(a). The date of conviction listed for both burglary adjudications was July 26,
1993, and both offenses were scored as person felonies. As a result, the district court
found that Anderson had a criminal history score of "B" and sentenced him to serve 277
months' imprisonment with 36 months' postrelease supervision.

In 2005, Anderson filed a motion to correct an illegal sentence, arguing that the
district court improperly enhanced his sentence based upon his prior juvenile
adjudications. The district court denied Anderson's motion, and he appealed. Thereafter,
this court affirmed the district court's denial of the motion. State v. Anderson, No. 95,440,
unpublished opinion filed December 22, 2006, rev. denied 283 Kan. 932 (2007).

Anderson filed another motion to correct an illegal sentence on December 24,
2014. In this motion, he argued that his 1993 burglary adjudications were illegally
classified as person felonies contrary to State v. Murdock, 299 Kan. 312, 313, 323 P.3d
846 (2014), modified by Supreme Court order September 19, 2014, overruled by State v.
Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). Following
this court's decision in State v. Dickey, 50 Kan. App. 2d 468, 329 P.3d 1230 (2014), aff'd
301 Kan. 1018, 350 P.3d 1054 (2015), Anderson filed another motion to correct an illegal
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sentence, arguing that his 1993 burglary adjudications were improperly classified as
person felonies. The district court denied both motions, and he timely appealed.

ANALYSIS

In his brief, Anderson asserts that his burglary adjudications were for burglaries he
committed prior to July 1, 1993. The State does not dispute this assertion. However, the
PSI report indicates that both of Anderson's juvenile burglary adjudications were for
violations of K.S.A. 21-3715(a), which did not go into effect until July 1, 1993. Further,
the PSI report lists the date of conviction for both of Anderson's juvenile adjudications as
July 26, 1993.

We note that copies of the juvenile adjudications are not included in the record on
appeal, so it is impossible for us to know the exact date on which Anderson committed
these crimes. Although the district court discussed Anderson's burglary adjudications
with him at sentencing, the dates the burglaries were committed were never mentioned.
Although it is possible, it is highly unlikely that Anderson committed the burglaries on or
after July 1, 1993, and was in a position to be adjudicated by July 26, 1993. Regardless,
the State had the burden to prove Anderson's criminal history score by a preponderance
of the evidence. K.S.A. 21-4715 (Furse); see State v. Hughes, 290 Kan. 159, 171, 224
P.3d 1149 (2010). Under the circumstances presented, it would seem incumbent on the
State to establish the date on which Anderson actually committed the burglaries for
which he was adjudicated in July 1993.

Accordingly, we remand this case to the district court so that the State can produce
the necessary documents to show the date on which Anderson committed the burglaries
for which he was adjudicated. If the district court determines that the burglaries were
committed prior to July 1, 1993, they should be considered as nonperson crimes for the
purpose of determining his criminal history. See State v. Martin, 52 Kan. App. 2d 474,
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369 P.3d 959 (2016) and State v. Vasquez, 52 Kan. App. 2d 708, ___ P.3d ___, 2016 WL
1728688 (2016). If, however, they were committed on or after July 1, 1993, they should
be considered to be person crimes for the purpose of determining his criminal history.

Sentence vacated and remanded for resentencing.