State v. Lacey

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NOT DESIGNATED FOR PUBLICATION

No. 118,901

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WARREN A. LACEY,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion on remand filed
October 11, 2019. Affirmed.

Sam Schirer, 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 ARNOLD-BURGER, C.J., LEBEN and BRUNS, JJ.

PER CURIAM: This case returns to us upon remand from the Kansas Supreme
Court. We must determine whether the district court correctly calculated Warren A.
Lacey's criminal history score at sentencing. We find that the recent case of State v.
Newton, 309 Kan. 1070, 442 P.3d 489 (2019), controls here and demands we affirm the
sentence imposed by the district court.



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FACTUAL AND PROCEDURAL HISTORY

Lacey was sentenced to a prison term for violating the Kansas Offender
Registration Act on October 18, 2015. He was placed on probation, but subsequently the
district court revoked his probation.

After his probation was revoked, Lacey appealed the revocation. He also argued
that his underlying sentence was illegal because the district court incorrectly calculated
his criminal history score. This court agreed, holding that the district court misclassified
Lacey's 1983 California conviction for robbery as a person felony. State v. Lacey, No.
118,901, 2018 WL 6253335, at *2-3 (Kan. App. 2018) (unpublished opinion), rev.
granted September 11, 2019. The court reasoned that the elements of the California
conviction were broader than the most similar Kansas crime and that the crimes were not
comparable under State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018). Lacey, 2018
WL 6253335, at *2-3.

Subsequently, the Kansas Supreme Court published State v. Weber, 309 Kan.
1203, Syl. ¶ 3, 442 P.3d 1044 (2019), where the court held that the legality of a sentence
under K.S.A. 2018 Supp. 22-3504 is controlled by the law in effect at the time the
sentence was pronounced and that a sentence that was legal at the time of sentencing does
not become illegal if the law later changes. Given the holding in Weber, the test for
comparability set out in Wetrich would not apply to Lacey's case. This case was
remanded to us for reconsideration of whether Lacey's sentence was illegal in light of
Weber.





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ANALYSIS

"Classification of prior offenses for criminal history purposes involves
interpretation of the KSGA [Kansas Sentencing Guidelines Act]; statutory interpretation
is a question of law subject to unlimited review." Wetrich, 307 Kan. at 555.

As the Kansas Supreme Court held in Weber, we must use the law in effect at the
time Lacey was sentenced to determine whether Lacey's sentence was illegal at
sentencing. See Weber, 309 Kan. 1203, Syl. ¶ 3. The Kansas Supreme Court issued its
opinion in State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), just a few months before
Lacey was sentenced. Keel addressed, in part, what two crimes to compare when
determining whether an out-of-state conviction was comparable to a similar Kansas
crime. The court in Keel held "the classification of a prior conviction . . . 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. In essence, we must compare Lacey's 1983 California robbery conviction with
the Kansas crime of robbery as it was defined in 2015. See 302 Kan. 560, Syl. ¶ 9.

When making the comparison, we apply the rule set out in State v. Vandervort,
276 Kan. 164, 179, 72 P.3d 925 (2003), which requires the offenses to be "comparable,
not identical." See Keel, 302 Kan. at 589-90 (applying Vandervort classification rule).
This court has explained that offenses may be comparable 'even when the out-of-state
statute encompassed some acts not necessarily encompassed by the Kansas statute." State
v. Riolo, 50 Kan. App. 2d 351, 356-57, 330 P.3d 1120 (2014).

Thus the question is whether Lacey's 1983 California robbery conviction is
comparable to a Kansas robbery in 2015 using the "comparable, not identical" rule. See
Keel, 302 Kan. 560, Syl. ¶ 9, 589-90; Vandervort, 276 Kan. at 179.

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In 1983, California defined robbery as "the felonious taking of personal property
in the possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear." Cal. Penal Code § 211 (West 1983). "Fear" was
defined as:

"1. The fear of an unlawful injury to the person or property of the person robbed, or of
any relative of his or member of his family; or,
"2. The fear of an immediate and unlawful injury to the person or property of anyone in
the company of the person robbed at the time of the robbery." Cal. Penal Code § 212
(West 1983).

Kansas defines robbery and aggravated robbery as:

"(a) Robbery is knowingly taking property from the person or presence of
another by force or by threat of bodily harm to any person.
"(b) Aggravated robbery is robbery, as defined in subsection (a), when
committed by a person who:
(1) Is armed with a dangerous weapon; or
(2) inflicts bodily harm upon any person in the course of such robbery." K.S.A.
2015 Supp. 21-5420(a)-(b).

Robbery and aggravated robbery are person felonies. K.S.A. 2015 Supp. 21-5420(c).

The major difference between the two statutes is that in California a person can
commit robbery by threatening to injure the property of the person robbed or of anyone in
the company of the person robbed. Kansas' statute does not have a threat to property
component.

This court addressed a similar argument in State v. Newton, No. 116,098, 2017
WL 3113025, at *2 (Kan. App. 2017) (unpublished opinion), aff'd 309 Kan. 1070, 442
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P.3d 489 (2019), holding that Newton's 1977 California conviction for robbery was
properly scored as a person offense. The statutory language in Newton and this case are
the same. See K.S.A. 2018 Supp. 21-5420; Cal. Penal Code §§ 211, 212 (West 1983).
This court reasoned that the "broader language of the California statute makes no
difference" because the crimes only needed to be "'similar in nature'" as opposed to
identical. 2017 WL 3113025, at *2.

The Kansas Supreme Court affirmed this court's holding in Newton, finding that
"Newton's 1977 California robbery conviction was properly classified as a person felony
under our caselaw." Newton, 309 Kan. at 1071.

As in Newton, because robbery was classified as a person felony in Kansas when
Lacey committed his current crime of conviction, the district court correctly classified his
1983 California conviction for robbery as a person felony. See Newton, 309 Kan. at 1073.

Affirmed.