State v. Childers

1

NOT DESIGNATED FOR PUBLICATION

No. 112,126

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GEORGE D. CHILDERS, III,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed October 30,
2015. Affirmed.

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

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., GREEN and POWELL, JJ.

Per Curiam: George D. Childers, III, appeals his sentence following his
convictions of leaving the scene of an accident and interference with law enforcement.
Childers claims the district court erred by classifying his prior driving-related convictions
as person felonies for criminal history purposes. Specifically, Childers argues that the
application of K.S.A. 2014 Supp. 21-6811(i) violates the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution. For the reasons stated herein,
we reject Childers' constitutional claim and affirm the district court's judgment.
2

The facts are straightforward and undisputed. In February 2014, pursuant to a plea
agreement, Childers pled guilty to one count of leaving the scene of an accident that
resulted in great bodily harm to a person and one count of felony interference with law
enforcement. The plea agreement anticipated that Childers' criminal history score was B.
The district court found Childers guilty of both charges and ordered a presentence
investigation (PSI) report.

The district court held a sentencing hearing on April 2, 2014. The PSI report
indicated a criminal history score of A, to which Childers objected. Specifically, he
objected to four of his prior convictions: number 24, driving with a revoked license;
number 26, driving while a habitual violator; number 27, no proof of insurance; and
number 28, driving while a habitual violator. Childers did not dispute that the convictions
occurred; instead, he challenged the application of HB 2044, now codified at K.S.A. 2014
Supp. 21-6811(i), which mandated that because he was convicted of leaving the scene of
an accident that resulted in great bodily harm, his prior driving-related convictions were
scored as person felonies for criminal history purposes. The district court continued
sentencing so that Childers could file a written objection to the application of K.S.A.
2014 Supp. 21-6811(i). Childers did so, arguing that the statute violated the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution.

The district court reconvened the sentencing hearing on April 22, 2014. After
hearing further argument from counsel, the district court rejected Childers' constitutional
claim and overruled his objection to his criminal history score. Although the judge found
that Childers' criminal history score was A, the judge imposed a sentence that could have
been imposed whether Childers' criminal history score was A or B. The district court
sentenced Childers to 19 months' imprisonment for leaving the scene of an accident and 9
months' imprisonment for interference with law enforcement. The district court ordered
the sentences to run consecutively for a controlling term of 28 months in prison with 12
months' postrelease supervision. Childers timely appealed his sentence.
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On appeal, Childers reasserts his argument that the use of K.S.A. 2014 Supp. 21-
6811(i) to score his prior driving-related convictions as person felonies violated the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution. He
contends that individuals charged with leaving the scene of an accident are similarly
situated to all other criminal defendants, yet the statute treats them dissimilarly with no
rational basis for doing so. The State asserts that Childers' equal protection challenge fails
for two reasons: (1) Childers was not treated differently than other, similarly situated
individuals and (2) even if he was, the statute survives rational basis scrutiny.

"The Fourteenth Amendment's Equal Protection Clause provides that '[n]o state
shall . . . deny to any person within its jurisdiction the equal protection of the laws.'" State
v. Cheeks, 298 Kan. 1, 3, 310 P.3d 346 (2013). Section 1 of the Kansas Constitution Bill
of Rights provides virtually the same protection. See Miller v. Johnson, 295 Kan. 636,
665-66, 289 P.3d 1098 (2012). This court reviews the constitutionality of a statute de
novo, presuming the statute is constitutional and resolving all doubts in favor of
upholding the statute. Cheeks, 298 Kan. at 4.

Childers claims that the application of K.S.A. 2014 Supp. 21-6811(i) violates the
Fourteenth Amendment's Equal Protection Clause. The statute states as follows:

"If the current crime of conviction is for a violation of subsections [(b)(3)
through (b)(5)] of K.S.A. 8-1602, and amendments thereto, each of the following prior
convictions committed on or after July 1, 2011, shall count as a person felony for
criminal history purposes: K.S.A. 8-235, 8-262, 8-287, 8-291, 8-1566, 8-1567, 8-1568,
8-1602, 8-1605 and 40-3104, and amendments thereto, and subsection (a)(3) of K.S.A.
2014 Supp. 21-5405 and 21-5406, and amendments thereto, or a violation of a city
ordinance or law of another state which would also constitute a violation of such
sections."

4

When considering an equal protection challenge, an appellate court uses a three-
step process. Cheeks, 298 Kan. at 4.

"First, we consider whether the legislation creates a classification resulting in different
treatment of similarly situated individuals. [Citation omitted.] Second, if the statute does
treat 'arguably indistinguishable' individuals differently, then we examine the nature of
the classification or right at issue to determine the appropriate level of scrutiny. [Citation
omitted.] Finally, we apply the appropriate level of scrutiny to the statute. [Citation
omitted.]"
. . . .
"The Equal Protection Clause requires that states treat 'similarly situated'
individuals similarly. [Citation omitted.] The party challenging a law's constitutionality
has the burden to prove the person is similarly situated to members of a class receiving
different treatment, and in conducting our review, we are limited 'by the distinctions
argued by the complaining party.' [Citation omitted.]" 298 Kan. at 4-5.

In In re Tax Appeal of Weisgerber, 285 Kan. 98, 106, 169 P.3d 321 (2007), our
Supreme Court recognized that "a threshold requirement for stating an equal protection
claim is to demonstrate that the challenged statutory enactment treats 'arguably
indistinguishable' classes of people differently. [Citation omitted.]" Here, Childers argues
that K.S.A. 2014 Supp. 21-6811(i) treats the following classes of people differently: (1)
people convicted of leaving the scene of an accident and (2) people convicted of all other
crimes. The State claims that to accept Childers' asserted classes would render the first
step of equal protection analysis meaningless, as any criminal defendant could allege that
defendants charged with any crime are a similarly situated class to all other criminal
defendants.

The State's argument has merit. As far back as Hayes v. Missouri, 120 U.S. 68, 71-
72, 7 S. Ct. 350, 30 L. Ed. 578 (1887), the United States Supreme Court explained:

5

"The Fourteenth Amendment to the Constitution of the United States does not
prohibit legislation which is limited either in the objects to which it is directed, or by the
territory within which it is to operate. It merely requires that all persons subjected to such
legislation shall be treated alike, under like circumstances and conditions, both in the
privileges conferred and in the liabilities imposed. As we said in Barbier v. Connolly,
[113 U.S. 27, 5 S. Ct. 357, 28 L. Ed. 923 (1885),] speaking of the Fourteenth
Amendment: 'Class legislation, discriminating against some and favoring others, is
prohibited; but legislation which, in carrying out a public purpose, is limited in its
application, if within the sphere of its operation it affects alike all persons similarly
situated, is not within the amendment.' [Citation omitted.]"

The Kansas Supreme Court recognized this same principle in Henry v. Bauder,
213 Kan. 751, Syl. ¶ 2, 518 P.2d 362 (1974), when it stated: "The constitutional principle
of equal protection does not preclude the state from drawing distinctions between
different groups of individuals, but does require that persons similarly situated with
respect to the legitimate purpose of the law receive like treatment." Here, the purpose of
K.S.A. 2014 Supp. 21-6811(i) is to more severely punish offenders with a criminal
history, including driving-related offenses, who are subsequently convicted of leaving the
scene of an accident that resulted in great bodily harm or death. Childers has failed to
show two classes similarly situated "within the sphere of [the statute's] operation"
because his second asserted class is a class of people who are not affected by K.S.A.
2014 Supp. 21-6811(i). See Hayes, 120 U.S. at 71-72.

Stated differently, if there were two classes of people both subject to K.S.A. 2014
Supp. 21-6811(i) and the statute treated the two classes differently, then such a situation
would provide an instance where the statute resulted in different treatment of similarly
situated individuals, and the threshold requirement of an equal protection claim would be
met. But that is not the case here. Thus, Childers has not met the threshold requirement of
an equal protection claim, i.e., that the challenged statutory enactment treats arguably
indistinguishable classes of people differently. See Weisgerber, 285 Kan. at 106.
6

Even if we were to find that the application of K.S.A. 2014 Supp. 21-6811(i)
resulted in different treatment of similarly situated individuals, we would next "examine
the nature of the classification or right at issue to determine the appropriate level of
scrutiny." Cheeks, 298 Kan. at 4-5. Childers and the State agree that the appropriate level
of scrutiny is rational basis. "To pass the rational basis test, the statute must foster
legitimate goals and the means chosen to achieve the state's goals must 'bear a rational
relationship to those goals.' [Citation omitted.]" Cheeks, 298 Kan. at 8. In other words,
"[u]nder this test, similarly situated groups of individuals may be treated differently
without violating principles of equal protection as long as the classification used to
distinguish them bears a rational relationship to a legitimate governmental objective."
Crawford v. Kansas Dept. of Revenue, 46 Kan. App. 2d 464, 471, 263 P.3d 828 (2011),
rev. denied 294 Kan. 943 (2012).

Under the rational basis test, Childers bears the burden of "negating '"every
conceivable [reasonable] basis which might support"' the differing treatment. [Citation
omitted.]" See Cheeks, 298 Kan. at 8. Childers has failed to meet this burden. As the
State points out, K.S.A. 2014 Supp. 21-6811(i) provides a rationally related means for the
legislature to pursue the legitimate goal of severely punishing offenders who commit
crimes related to driving and then subsequently commit the crime of leaving the scene of
an accident resulting in great bodily harm or death. Therefore, the statute withstands
rational basis scrutiny. See Cheeks, 298 Kan. at 8.

For these reasons, the application of K.S.A. 2014 Supp. 21-6811(i) does not
violate the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. Thus, we conclude the district court did not err by classifying Childers'
prior driving-related convictions as person felonies for criminal history purposes.

Affirmed.