State v. Greene

1

NOT DESIGNATED FOR PUBLICATION

No. 114,825

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANDREW C. GREENE, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed September 2, 2016.
Affirmed.

Richard P. Klein, of Olathe, for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., BRUNS and SCHROEDER, JJ.

Per Curiam: Andrew C. Greene, Jr., appeals his sentence as a persistent sex
offender claiming the district court improperly used his criminal history to determine his
status as a persistent sex offender in violation of Apprendi v. New Jersey, 530 U.S. 466,
490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Greene also claims the district court
erred by not following State v. Murdock, 299 Kan. 312, 313, 323 P.3d 846 (2014),
overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct.
865 (2016), to score his pre-1993 convictions as nonperson felonies even after Murdock
was overruled by Keel. Finding no error, we affirm.

2

FACTS

In 2011, a jury convicted Greene of rape in violation of K.S.A. 21-3502(a)(1)(C).
The facts relating to Greene's jury conviction were set forth by our Supreme Court in
Greene's direct appeal and do not need to be repeated here. State v. Greene, 299 Kan.
1087, 1088-91, 329 P.3d 450 (2014). At his original sentencing hearing, Greene was
adjudged an aggravated habitual offender, pursuant to K.S.A. 21-4642, and sentenced to
lifetime imprisonment without the possibility of parole. On direct appeal, the Supreme
Court affirmed Greene's conviction but vacated Greene's sentence and remanded to the
district court for resentencing because Greene had been incorrectly sentenced as an
aggravated habitual sex offender. The Supreme Court determined both K.S.A. 21-4642
and K.S.A. 21-4704(j)(2)(B) applied equally and neither is more specific. Thus, Greene
should have been sentenced under the more lenient statute, K.S.A. 21-4704(j), as a
persistent sex offender. 299 Kan. 1087, Syl. ¶ 3.

On remand, an updated presentence investigation report (PSI) was prepared. At
sentencing, Greene objected to scoring three entries on the updated PSI as person
felonies: Entry 1, a 1975 Kansas conviction for indecent liberties with a child; Entry 2, a
1975 Kansas conviction for rape; and Entry 8, a 1987 Kansas conviction for attempted
aggravated kidnapping.

The district court denied Greene's objection to the classification of Entries 1, 2,
and 8 as person felonies. Greene's 1975 Kansas rape conviction was classified as an adult
felony for sentence enhancement. Greene's two remaining person felony convictions
placed him in criminal history category B. The district court adjudged Greene a persistent
sex offender and doubled his maximum sentence for a controlling sentence of 1,236
months' imprisonment.

3

Greene now appeals his sentence raising two issues: (1) The Kansas persistent sex
offender sentencing scheme violates Apprendi, and (2) we should follow Murdock to
determine his correct sentence in this case.

ANALYSIS

Kansas' persistent sex offender sentencing scheme does not violate Apprendi.

Standard of Review

Whether a statute is constitutional is a question of law subject to unlimited review.
State v. Soto, 299 Kan. 102, Syl. ¶ 8, 322 P.3d 334 (2014).

Discussion

Greene argues the sentencing scheme for a persistent sex offender is
unconstitutional and violates his rights under the Sixth and Fourteenth Amendments to
the United States Constitution by requiring additional factfinding at sentencing by the
district court in violation of Apprendi, 530 U.S. at 490.

Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the statutory maximum must be submitted to a jury and proved beyond a
reasonable doubt. Apprendi, 530 U.S. at 490. The use of a defendant's criminal history to
increase the sentence imposed does not violate Apprendi. State v. Ivory, 273 Kan. 44, 46-
48, 41 P.3d 781 (2002). Ivory has been repeatedly upheld. See State v. Baker, 297 Kan.
482, 485, 301 P.3d 706 (2013); State v. Fewell, 286 Kan. 370, 393-96, 184 P.3d 903
(2008). This court is bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. State v. Belone, 51
4

Kan. App. 2d 179, 211, 343 P.3d 128, rev. denied 302 Kan. 1012 (2015). We have
observed no indication the Supreme Court is departing from its previous position.

The sentence for any persistent sex offender whose current crime of conviction
carries a presumptive term of imprisonment shall be double the maximum duration of the
presumptive imprisonment term. K.S.A. 21-4704(j)(1).

"(2) Except as otherwise provided in this subsection, as used in this subsection,
'persistent sex offender' means a person who: (A)(i) Has been convicted in this state of a
sexually violent crime, as defined in K.S.A. 22-3717, and amendments thereto; and (ii) at
the time of the conviction under subsection (A)(i) has at least one conviction for a
sexually violent crime, as defined in K.S.A. 22-3717, and amendments thereto in this
state or comparable felony under the laws of another state." K.S.A. 21-4704(j)(2).

The sentencing court is not required to make any factual findings beyond the existence of
a prior conviction in adjudging a defendant a persistent sex offender. Our Supreme Court
addressed this same issue in State v. Moore, 274 Kan. 639, 653-54, 55 P.3d 903 (2002),
and found 21-4704(j) does not violate Apprendi. Thus, the district court properly applied
Greene's criminal history without any factfinding to determine he was a persistent sex
offender.

Murdock does not apply.

Standard of Review

Whether a prior conviction should be classified as a person or nonperson offense
involves interpretation of the revised Kansas Sentencing Guidelines Act, K.S.A. 2015
Supp. 21-6801 et seq. (KSGA). Interpretation of a statute is a question of law over which
appellate courts have unlimited review. Keel, 302 Kan. at 571.

5

Discussion

Greene argues the district court erred in scoring his three pre-1993 Kansas
convictions—a 1975 Kansas rape conviction, a 1975 Kansas conviction for aggravated
indecent liberties with a child, and a 1987 Kansas conviction for attempted aggravated
kidnapping—as person felonies. Greene asserts these convictions should have been
scored as nonperson felonies under Murdock, 299 Kan. at 313.

This court is bound to follow Kansas Supreme Court precedent, absent some
indication the Supreme Court is departing from its previous position. Belone, 51 Kan.
App. 2d at 211. Accordingly, Murdock cannot be applied to the claims Greene raises on
appeal since Murdock was explicitly overruled by Keel, 302 Kan. 560, Syl. ¶ 9. The
district court, therefore, did not err in finding Murdock does not apply to Greene's prior
convictions, and in accordance with Keel, "the classification of a prior conviction or
juvenile adjudication for criminal history purposes under the KSGA must be based on the
classification in effect for the comparable offense when the current crime of conviction
was committed." 302 Kan. 560, Syl. ¶ 9.

Affirmed.