State v. Cadenhead

1

NOT DESIGNATED FOR PUBLICATION

No. 117,796

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTINA A. CADENHEAD,
Appellant.

MEMORANDUM OPINION


Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed August 3, 2018.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., PIERRON and MALONE, JJ.

PER CURIAM: Christina A. Cadenhead pled no contest to possession of
methamphetamine. She objected to the classification of a 2005 burglary of a dwelling as
a person felony, which resulted in a criminal history score of C. The district court denied
her objection. She appeals.

Cadenhead was arrested for multiple warrants. During the December 2016 arrest,
she admitted she had a needle in her front pants pocket. At the Douglas County detention
2

center, officers searched Cadenhead and found several baggies of methamphetamines in
her pocket. She admitted the baggies belonged to her.

Cadenhead pled no contest to possession of methamphetamines with the
understanding that she likely qualified for mandatory drug treatment under S.B. 123.
Following her plea, the district court revoked Cadenhead's bond to allow her to complete
necessary evaluations and maintain sobriety. The court ordered a presentence
investigation (PSI) report for sentencing.

The PSI report showed Cadenhead had a criminal history score of C. The criminal
history worksheet showed a 2005 conviction for burglary of a dwelling, under K.S.A. 21-
3715, which had been classified as a person felony. Cadenhead objected to her criminal
history score. She contended that under State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015),
courts should designate prior convictions as either person or nonperson felonies based on
the classification in effect when the current offense was committed.

In 2011, the Kansas Legislature recodified K.S.A. 21-3715 as K.S.A. 2011 Supp.
21-5807. Then, in 2016, the Legislature changed the designation of burglary of a
dwelling to nonperson. See L. 2016, ch. 90, § 3. Cadenhead asserted that had the district
court classified the prior burglary as a nonperson felony, her criminal history score would
have been F.

The State argued the rule in Keel did not apply to Cadenhead because under
K.S.A. 2017 Supp. 21-6811(d)(1), a prior burglary of a dwelling under K.S.A. 21-3715(a)
is a person felony. Cadenhead countered that when two unambiguous statutes conflict,
the rule of lenity required the district court to construe the statutes strictly against the
State.

3

The district court determined that future defendants could address the apparent conflict
with K.S.A. 2017 Supp. 21-6811(d)(1), but it did not affect Cadenhead because her
conviction was under K.S.A. 21-3715(a) rather than K.S.A. 2016 Supp. 21-5807(a)(1),
(c)(1)(A)(i). The court found that because the statutory inconsistency did not apply to
Cadenhead, the prior felony was properly scored as a person felony. The court sentenced
Cadenhead to an underlying term of 30 months in the Kansas Department of Corrections with
12 months of postrelease supervision. The court granted her 18 months of probation with the
condition that she participate in the treatment program recommended by her probation officer.

Cadenhead appeals the classification of her prior burglary conviction. We affirm.

Cadenhead claims her criminal history score would have been F if her prior
burglary of a dwelling had been properly classified as a nonperson felony. She contends
that under Keel, the district court had to classify her prior burglary as a nonperson felony
because when she committed her current offense, burglary of a dwelling was a nonperson
felony.

Classification of a prior conviction as a person or nonperson offense involves
interpretation of the Kansas Sentencing Guidelines Act (KSGA). Keel, 302 Kan. at 571.
Statutory interpretation is a question of law over which this court has unlimited review.
302 Kan. at 571.

In 2005, Cadenhead was convicted of burglary of a dwelling under K.S.A. 21-
3715(a), repealed and recodified in K.S.A. 2011 Supp. 21-5807(a)(1). Burglary of a
dwelling under K.S.A. 21-3715(a) was a person felony.

Burglary of a dwelling under K.S.A. 2017 Supp. 21-5807(a)(1) has, for the most
part, been classified as a person felony. But from July 1, 2016, until May 18, 2017, the
Kansas Legislature changed the designation from person to nonperson. See K.S.A. 2016
4

Supp. 21-5807(c)(1)(A)(i); K.S.A. 2017 Supp. 21-5807(c)(1)(A)(i). We do not know
why. Despite the designation change, K.S.A. 2016 Supp. 21-6811(d)(1) maintained that
courts were to classify prior burglary of a dwelling convictions as person felonies.
Cadenhead claims Keel controls and the district court should have designated her prior
burglary of a dwelling as a nonperson felony. She also asserts that the 2016 statutes
directly conflict with how to classify burglary of a dwelling and the conflict should be
resolved in her favor.

The person or nonperson designation affects only the criminal history score for
sentencing in subsequent offenses. In Keel, Keel claimed the district court had erred by
classifying his January 1993 attempted aggravated robbery and aggravated robbery
convictions as person felonies because prior to July 1, 1993, offenses had not been
designated as person or nonperson offenses. The offense designations began when the
Legislature implemented the KSGA in July 1993. While the KSGA provided instructions
for classifying out-of-state convictions, the Legislature failed to include provisions for
designating pre-KSGA in-state convictions or juvenile adjudications.

In Keel, the Supreme Court focused on State v. Murdock, 299 Kan. 312, 323 P.3d
846 (2014); State v. Williams, 291 Kan. 554, 244 P.3d 667 (2010); and State v.
Vandervort, 276 Kan. 164, 72 P.3d 925 (2003), overruled in part by State v. Dickey, 301
Kan. 1018, 350 P.3d 1054 (2015). In Vandervort, the defendant had been convicted of
numerous offenses that spanned from 1996 to 2000. The comparable Kansas statute for
his prior out-of-state conviction changed from nonperson to person designation in 1998.
Because the jury did not determine at what point in the four-year period the criminal
conduct occurred, the Supreme Court determined the district court must sentence him
using the lower criminal history. 276 Kan. at 180.

In Williams, the defendant appealed the person designation of her prior out-of-
state convictions. When she committed the prior offenses, the comparable Kansas statute
5

designated the offense a person felony. But at the time of the commission of her current
offense, the Legislature had amended the comparable Kansas statute to a nonperson
designation. The Supreme Court found the district court correctly based its designation of
the prior offenses on the Kansas statute in effect when she committed the prior offenses.
291 Kan. at 562.

In Murdock, the defendant appealed the person designation of his prior pre-KSGA,
out-of-state convictions. The current comparable offense was designated a person felony.
The prior offense was pre-KSGA and so had no designation. Although the comparable
Kansas offense at the time of the current offense was designated a person felony, pre-
KSGA convictions were designated nonperson offenses. Following Williams, the
Murdock court found that because the statute in effect when he committed his prior
offense was pre-KSGA, his prior convictions should have been designated nonperson
offenses. 299 Kan. at 319.

The Keel court overruled Williams and Murdock, by holding that courts should
base their designation of prior adult convictions and juvenile adjudications on Kansas
offenses in effect at the time of the current conviction. 302 Kan. at 590. The Keel
decision was the Supreme Court's interpretation of the 2014 sentencing statutory scheme.
After Murdock but before Keel, the Kansas Legislature again revised the guidelines for
determining criminal history in K.S.A. 2015 Supp. 21-6810 and K.S.A. 2015 Supp. 21-
6811 to account for the classification omissions the Supreme Court sought to resolve in
Murdock.

Under K.S.A. 2015 Supp. 21-6810(d)(2):

"All prior adult felony convictions, including expungements, will be considered
and scored. Prior adult felony convictions for offenses that were committed before July 1,
1993, shall be scored as a person or nonperson crime using a comparable offense under
6

the Kansas criminal code in effect on the date the current crime of conviction was
committed." (Emphasis added to 2015 addition.)

The Legislature added nearly identical language to K.S.A. 2015 Supp. 21-6810(d)(3) for
classification of juvenile adjudications. The Legislature broke K.S.A. 2015 Supp. 21-
6811(e) down into additional subsections. Under K.S.A. 2015 Supp. 21-6811(e)(3), prior
out-of-state convictions are to be designated as follows:

"The state of Kansas shall classify the crime as person or nonperson. In
designating a crime as person or nonperson, comparable offenses under the Kansas
criminal code in effect on the date the current crime of conviction was committed shall be
referred to. If the state of Kansas does not have a comparable offense in effect on the date
the current crime of conviction was committed, the out-of-state conviction shall be
classified as a nonperson crime." (Emphasis added to 2015 addition.)

In Keel, the court made its determinations based on cases in which the codified
sentencing provisions provided no clear resolution, making statutory interpretation
necessary. The court even noted that its decision was consistent with the statutory
revisions made to K.S.A. 2014 Supp. 21-6810 and K.S.A. 2014 Supp. 21-6811. 302 Kan.
at 590. In these revisions, effective April 2, 2015, the Kansas Legislature repaired the
issues presented in Murdock, making changes only to the designation of pre-KSGA
convictions, out-of-state convictions, and juvenile adjudications. Yet the Legislature did
not include such an instruction for designation of in-state, post-KSGA convictions.

The Keel court declined to apply the revised statutes because they had not been in
effect at the time of Keel's sentencing, noting that the Legislature's explicit intent that the
amendments be applied retroactively was not dispositive because of implications under
the Ex Post Facto Clause of the United States Constitution. 302 Kan. at 589. The Ex Post
Facto Clause is inapplicable here because when Cadenhead committed the burglary of a
dwelling, the offense was designated as a person felony.
7


The Keel court noted that for in-state prior convictions, "[w]hen the statute under
which the prior conviction was obtained was still in effect, the structure of the KSGA . . .
simply pointed the court to that statute to determine how to designate the prior
conviction." 302 Kan. at 580. The court made no further reference to prior in-state, post-
KSGA convictions before continuing its analysis of out-of-state convictions. It further
reasoned that classifying prior convictions with the classification at the time of the
current offense allows sentences to "reflect ever-evolving sentencing philosophies and
correction goals," which disregards the ability of legislatures to apply amendments
retroactively. 302 Kan. at 588.

This rationale become troublesome when applying the Keel rule to in-state, post-
KSGA prior offenses for burglary of a dwelling under K.S.A. 2016 Supp. 21-5807(a)(1),
(c)(1)(A)(i). The quick return to the person designation shows the Legislature recognized
the change as an error. And designating the offense as a person felony for sentencing of a
later conviction could create an Ex Post Facto issue. While application of the Keel rule is
simple for offenses that do not have a designation at the time of conviction or even when
the Legislature has decreased the classification for an offense, issues may arise if the
Legislature's ever-evolving sentencing philosophy results in an increase to the
designation or penalty.

"The power to proscribe the penalty to be imposed for the commission of a crime
rests exclusively with the legislature, not the courts. The power of the legislature to
specify the punishment for a crime is controlled by the Constitutions of the United States
and the State of Kansas." State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985).
Because sentencing, including instruction for determining the appropriate sentence, is
within the province of the Legislature, with the 2015 statutory revisions, Keel is no longer
controlling.

8

Cadenhead contends that K.S.A. 2016 Supp. 21-5807(c)(1)(A)(i), which
designated burglary of a dwelling as a severity level 7 nonperson felony, directly
conflicts with K.S.A. 2016 Supp. 21-6811(d)(1), which provides that prior convictions
under K.S.A. 21-3715(a), prior to its repeal, or K.S.A. 2016 Supp. 21-5807(a)(1) are to
be designated as person felonies. She contends that the revisions to K.S.A. 2016 Supp.
21-5807(c)(1) established the legislative intent for burglaries without aggravating factors
to constitute nonperson felonies. She also asserts that if we find K.S.A. 2016 Supp. 21-
6811(d) controlled the classification, we will render the statutory revisions meaningless
because no scenario exists under which burglary of a dwelling would be designated a
nonperson felony.

"When there is a conflict between two statutes the latest legislative expression
generally controls. But when the conflict is between a general principle of law and a more
specific enactment, the more specific statute controls." State v. Englund, 50 Kan. App. 2d
123, Syl. ¶ 3, 329 P.3d 502 (2014). When the Legislature revises an existing law, the
courts presume the changes were intentional and done with full knowledge of existing
law. 50 Kan. App. 2d at 126. Cadenhead asserts K.S.A. 2016 Supp. 21-5807 is more
specific, and the State asserts K.S.A. 2016 Supp. 21-6811 is.

Under K.S.A. 2016 Supp. 21-5807:

"(a) Burglary is, without authority, entering into or remaining within any:
(1) Dwelling, with intent to commit a felony, theft or sexually motivated crime
therein;
. . . .
"(c)(1) Burglary as defined in:
(A)(i) Subsection (a)(1) or (a)(2) is a severity level 7, nonperson felony, except
as provided in (c)(1)(B)."

9

Subsection (a)(1) provided the elements of burglary of a dwelling. Subsection (c)(1)
provided the severity level and the nonperson designation. Following Murdock, the
Kansas Legislature also revised K.S.A. 2015 Supp. 21-6811 (effective April 2, 2015) to
include subsection (j), stating: "The amendments made to this section . . . are procedural
in nature and shall be construed and applied retroactively."

The applicable subsections of K.S.A. 2016 Supp. 21-6811 state:

"In addition to the provisions in K.S.A. 2016 Supp. 21-6810, and amendments
thereto, the following shall apply in determining an offender's criminal history
classification as contained in the presumptive sentencing guidelines grids:
. . . .
"(d) Prior burglary adult convictions and juvenile adjudications will be scored for
criminal history purposes as follows:
(1) As a prior person felony if the prior conviction or adjudication was classified
as a burglary as defined in K.S.A. 21-3715(a), prior to its appeal, or K.S.A. 2016 Supp.
21-5807(a)(1), and amendments thereto.
. . . .
"The facts required to classify prior burglary adult convictions and juvenile
adjudications shall be established by the state by a preponderance of the evidence.
. . . .
"(j) The amendments made to this section by Chapter 5 of the 2015 Session Laws
of Kansas are procedural in nature and shall be construed and applied retroactively."

This statute is part of the revised KSGA, K.S.A. 2017 Supp. 21-6801 et seq. The person
designation under K.S.A. 2016 Supp. 21-6811(d)(1) is explicitly to determine criminal
history for sentencing.

Though K.S.A. 2016 Supp. 21-5807(a)(1) and (c)(1) are specific to the offense of
burglary and includes the severity level and nonperson designation for future sentencing,
K.S.A. 2016 Supp. 21-6811(d)(1) is specific to the purpose for which it is being used
10

here—sentencing for a subsequent offense. It also provides the State's burden of proof in
proving prior convictions. When considered along with the legislative omission of an in-
state, post-KSGA rule for designation at the time of the current offense, it seems the
person/nonperson designation in K.S.A. 2016 Supp. 21-5807(c)(1) is for determination of
an offender's criminal history score in current offenses rather than for designation of prior
offenses for criminal history. Even so, the designation in K.S.A. 2016 Supp. 21-
6811(d)(1) provides instruction for designating any prior conviction for burglary of a
dwelling when scoring it for sentencing. Thus, K.S.A. 2016 Supp. 21-6811(d)(1)
provides a specific enactment.

Cadenhead contends we are to presume a Legislature makes amendments
intentionally with full knowledge of the law. While it is unknown why the Legislature
changed burglary of a dwelling from a person designation to a nonperson designation for
10 months, based on the statutory scheme, only an offender with a conviction under
K.S.A. 2016 Supp. 21-5807(a)(1) could challenge a person designation for sentencing of
a subsequent conviction. We affirm.

Affirmed.