State v. Crooks

NOT DESIGNATED FOR PUBLICATION

No. 118,335

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EARL F. CROOKS JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed May 25, 2018.
Affirmed in part and vacated in part.

Submitted for summary disposition under K.S.A. 2017 Supp. 21-6820(g) and (h).

Before MALONE, P.J., LEBEN and POWELL, JJ.

PER CURIAM: Earl Crooks was convicted of two counts of aggravated assault of a
law-enforcement officer and one count of criminal possession of a firearm. Crooks now
appeals the sentence he received for those crimes, arguing that the district court erred by:
(1) imposing a 66-month prison sentence and making his sentences consecutive to each
other; (2) using prior convictions to enhance his sentence; (3) ordering him to pay witness
and DNA-database fees without making an oral pronouncement of that order during the
sentencing hearing; (4) ordering him to pay the Board of Indigents' Defense Services
application fee without first considering his financial resources on the record; (5) and
imposing a no-contact order as part of his sentence.

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FACTUAL AND PROCEDURAL BACKGROUND

Crooks pleaded guilty to two counts of aggravated assault of a law-enforcement
officer and one count of criminal possession of a firearm in September 2015. Under the
plea agreement, the State dismissed an additional count of criminal discharge of a
firearm. Both parties recommended the court sentence Crooks to the maximum sentence
for each count and for those sentences to be consecutive to each other.

The court followed the parties' recommendation and ordered Crooks to serve 66
months in prison: consecutive sentences of 38 months for the first count of aggravated
assault of a law-enforcement officer; 19 months for the second count of aggravated
assault of a law-enforcement officer; and 9 months for criminal possession of a firearm.
Crooks will also have 24 months of postrelease supervision. The court also ordered
Crooks to have no contact with his victims—two police officers—while in prison or on
postrelease supervision.

ANALYSIS

Crooks first argues that the district court erred by imposing a 66-month prison
sentence. We don't have jurisdiction to review "any sentence resulting from an agreement
between the state and the defendant which the sentencing court approves on the record."
K.S.A. 2017 Supp. 21-6820(c)(2). Nor does it have jurisdiction to review sentences that
fall within the presumptive sentence for the crime. K.S.A. 2017 Supp. 21-6820(c)(1).
Since the district court imposed the recommended sentence, which fell within the
presumptive sentencing range, we do not have jurisdiction to review the sentence.

Likewise, the district court didn't err by making Crooks' new sentences
consecutive to each other. The district court had the discretion to run Crooks' new
sentences consecutive to each other, so we review that decision only for an abuse of
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discretion. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Unless the court has
made a legal or factual error, we may find an abuse of discretion only when no
reasonable person would agree with the decision made by the district court. See State v.
Schaal, 305 Kan. 445, 449, 383 P.3d 1284 (2016). Here, especially given the parties' plea
agreement recommendation of consecutive sentences, a reasonable person could agree
with the court's decision to make Crooks' sentences consecutive to each other.

Second, Crooks says the court violated his constitutional rights when it used his
prior convictions to calculate his criminal-history score, which was used to enhance his
sentence. Crooks cites Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000), which held that the Sixth Amendment to the United States
Constitution requires that any fact that increases the penalty for a crime beyond the
prescribed statutory maximum—"[o]ther than the fact of a prior conviction"—must be
submitted to a jury and proved beyond a reasonable doubt.

But Crooks also recognizes that the Kansas Supreme Court has already considered
this issue and confirmed that Apprendi does not keep the sentencing court from
considering the mere fact of a prior conviction when applying the Kansas sentencing
guidelines. Accordingly, a defendant's criminal-history score doesn't have to be proved to
a jury beyond a reasonable doubt before it can be used to increase a defendant's sentence.
See, e.g., State v. Overman, 301 Kan. 704, 716, 348 P.3d 516 (2015); State v. Ivory, 273
Kan. 44, 47-48, 41 P.3d 781 (2002). The district court did not err by considering Crooks'
prior convictions to calculate his criminal-history score and impose the guidelines
sentence.

Third, Crooks says the court improperly imposed DNA-database and witness fees
by not pronouncing those fees at sentencing. But the Kansas Supreme Court has
recognized that the assessment of these costs to the defendant is not intended as
punishment and, thus, does not form part of the sentence imposed on a criminal
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defendant. See State v. Phillips, 289 Kan. 28, 34-35, 210 P.3d 93 (2009). Instead, they are
a way to recoup government expenses associated with operating the criminal-justice
system. 289 Kan. at 34-35. Because they aren't part of the criminal sentence, a district
court need not orally impose them during a sentencing hearing and may simply include
them in the journal entry of judgment, as was done here. 289 Kan. at 41-42.

Next, Crooks says that the court erred by making him pay the Board of Indigents'
Defense Services application fee without first considering his financial resources on the
record. But Crooks had not yet paid the application fee when he was sentenced, so the
district court was permitted to include the unpaid fee in the sentencing order without
making any additional findings on the record. See State v. Scaife, 286 Kan. 614, Syl. ¶ 7,
186 P.3d 775 (2008).

Last, Crooks argues that the district court imposed an illegal sentence when it
imposed a no-contact order as part of his sentence. A sentencing court exceeds its
authority when it imposes both prison time and a no-contact order as a condition of
postrelease supervision. State v. Bowen, 299 Kan. 339, 359, 323 P.3d 853 (2014). The
State agrees that the no-contact order was inappropriate in Crooks' case, and both parties
agree that this court should vacate the no-contact order.

On Crooks' motion, we accepted this appeal for summary disposition under K.S.A.
2017 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A (2018 Kan. S. Ct. R.
47). We have reviewed the record of the sentencing court and find only one error in
Crooks' sentence—imposing a no-contact order.

We vacate the no-contact order. Otherwise, we affirm the district court's judgment.