State v. Parker

1

NOT DESIGNATED FOR PUBLICATION

No. 113,910

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

PAUL H. PARKER JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed July 1, 2016. Affirmed.

Adam D. Stolte, of Stolte Law, LLC, of Olathe, for appellant.

Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., POWELL and GARDNER, JJ.

Per Curiam: Paul H. Parker Jr., appeals his sentence, claiming his criminal
history was improperly scored as A instead of B. Although Parker is correct, the State is
also correct that Parker's score, even absent that error, would remain A. Accordingly, we
find no basis for relief.

Procedural background

In 2010, a jury convicted Paul Parker of rape, attempted rape, aggravated sexual
battery, two counts of battery, and aggravated burglary. The facts are well known to the
2

parties and are irrelevant to this appeal, so we see no need to recite them here. See State
v. Parker, 48 Kan. App. 2d 68, 282 P.3d 643 (2012), rev. denied 297 Kan. 1254 (2013).
After the State filed notice of its intent to request an upward durational departure, the jury
found the evidence necessary to establish an aggravating sentencing factor—the victim
was particularly vulnerable due to her age. Parker takes no issue on appeal with the
upward durational departure sentence proceeding.

Prior to sentencing, the presentence investigation (PSI) report found Parker had
multiple prior convictions, including a burglary conviction in 1984, an attempted
burglary conviction in 1987, an indecent liberties with a child conviction in 1992, an
aggravated burglary conviction in 1998, and two attempted residential burglary
convictions in 2005. Based on Parker's criminal history, the district court found Parker
had a criminal history score of A—the highest. His severity level was also the highest—I.

At the sentencing hearing, Parker did not object to his criminal history score. The
State asked the district court to double the top of the sentencing range for A I (653
months), but the district court instead doubled the standard sentencing range for A I (620
months), imposing concurrent prison sentences of 1,240 months for rape, 118 months for
attempted rape, 64 months for aggravated sexual battery, and 32 months for aggravated
burglary. As to the battery convictions, the district court also sentenced Parker to
concurrent sentences of 6 months in the Saline County Jail. Parker filed a direct appeal
but the Kansas Court of Appeals upheld his convictions and sentences. Parker, 48 Kan.
App. 2d at 86.

On August 4, 2014, Parker filed a pro se motion to correct an illegal sentence
under K.S.A. 22-3504, arguing his pre-Kansas Sentencing Guidelines Act (KSGA)
convictions had been improperly classified under State v. Murdock, 299 Kan. 312, 323
P.3d 846 (2014), modified by Supreme Court order September 19, 2014, overruled by
State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). He
3

claimed that all pre-KSGA felonies must be scored as nonperson offenses. Parker also
asked the district court to resentence him consistent with Murdock.

In December 2014, Parker's attorney filed a motion for correction of sentence,
immediately followed by two amended motions, also claiming that under Murdock,
Parker's criminal history was inaccurate and his sentence was illegal. At the hearing,
Parker argued his pre-KSGA convictions should not be scored as person felonies.

Following the hearing, the district court affirmed Parker's convictions, finding
Parker had stipulated to his criminal history score at sentencing and had failed to raise the
issue in his direct appeal. The district court held Parker's sentence was legal when it was
imposed and was final prior to the Murdock decision. The district court further found that
even if Murdock were factually applicable, Murdock could not be retroactively applied.
Additionally, the district court held Parker's claim was barred by the doctrine of res
judicata.

Parker timely appeals from the district court's denial of Parker's motion to correct
illegal sentence, arguing his criminal history score is B and not A because his prior
burglaries were not shown to be of dwellings, as is necessary to find them person
felonies. If his criminal history is B, the standard sentence for a severity I would have
been 586 and Parker's sentence for rape, when doubled, would have been 1172 months,
instead of the 1240 months imposed by the court.

Did the district court err in calculating Parker's criminal history score?

Before addressing Parker's arguments on appeal, we note what Parker is not
arguing. Parker has abandoned his motion to correct an illegal sentence based on our
Supreme Court's holding in Murdock, presumably because Murdock has been overruled
by Keel, 302 Kan. 560, Syl. ¶ 9. And although Parker's initial brief claimed that his
4

sentence is illegal under State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), he
repeatedly disavows reliance on Dickey in his reply brief: ("First, Mr. Parker did not ask
for relief through retroactive application of State v. Dickey. Instead, Mr. Parker is entitled
to relief because . . . the district court failed to apply Apprendi v. New Jersey . . . .
Secondly, this Court may hear this issue because Mr. Parker asked for application of
Apprendi, not retroactive application of Dickey."). Accordingly, we do not examine the
State's argument that Parker's claims fail, because Dickey is not retroactive and applies
only on direct appeal.

Parker argues that his 1984 burglary conviction and 1987 attempted burglary
conviction must be scored as nonperson felonies for criminal history purposes given the
statutory elements of the offense and the dictates of Descamps v. United States, 570 U.S.
___, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Parker raises this argument for the first time on appeal. Complying with Rule
6.02(a)(5) (2015 Kan. Ct. R. Annot. 41), Parker explains this issue falls under two of the
exceptions to the general rule, which states that issues cannot be raised for the first time
on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). We agree with
Parker that the newly asserted question involves only a question of law arising on proved
or admitted facts and is finally determinative of the case. See State v. Phillips, 299 Kan.
479, 493, 325 P.3d 1095 (2014). Accordingly, we address the merits of this issue.

K.S.A. 22-3504(1) provides that a court may correct an illegal sentence at any
time. Whether a sentence is illegal is a question of law over which this court has
unlimited review. State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015). An illegal
sentence is:

5

"'(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not
conform to the applicable statutory provision, either in character or the term of authorized
punishment; or (3) a sentence that is ambiguous with respect to the time and manner in
which it is to be served.' [Citations omitted.]" Dickey, 301 Kan. at 1034.

Although Parker argues that both his 1984 and 1987 burglary convictions should
be scored as nonperson felonies, his PSI indicates that only his 1987 conviction was
scored as a person felony; and his 1984 conviction was used as an enhancement and was
not used for criminal history purposes. Thus, we examine only whether Parker's 1987
burglary conviction was properly scored as a person felony for criminal history purposes.

The statute in effect at the time Parker committed the 1987 burglary defined the
crime of burglary as follows:

"Burglary is knowingly and without authority entering into or remaining within
any building, mobile home, tent or other structure, or any motor vehicle, aircraft,
watercraft, railroad car or other means of conveyance of persons or property, with intent
to commit a felony or theft therein." K.S.A. 21-3715 (Ensley 1981).

Parker alleges that his 1987 burglary conviction was under a statute that contained
no dwelling element, but the State does not challenge that allegation or Parker's ensuing
argument that this conviction should have been classified as a nonperson offense under
the reasoning in Descamps/Apprendi. Accordingly, we find the State has tacitly conceded
that Parker's 1987 Kansas burglary conviction was not a person felony for criminal
history purposes. Thus, we assume, as the parties do, that the district court erred in
counting it as such.




6

Would Parker's criminal history score be an A even excluding the 1987 burglary?

We next consider the State's contention that even if Parker's 1987 Kansas burglary
conviction were a nonperson felony for criminal history purposes, his criminal history
category remains an A, making any error harmless. The State contends that even if
Parker's pre-KSGA convictions are excluded from the calculation of Parker's criminal
history score, Parker would nonetheless receive a criminal history score of A because he
has three or more person felonies—two prior convictions for attempted residential
burglary in 2005, an aggravated burglary conviction in 1998, and an indecent liberties
with a child conviction in 1992.

Parker counters that those convictions were counted as enhancements, so they
cannot also be counted in determining his criminal history category; this, coupled with
the re-categorization of his 1987 Kansas burglary conviction as a nonperson offense,
leaves him with only two person felonies (those in 2005) and drops his criminal history
score from A to B.

The determination of whether a sentence is illegal is a question of law over which
we have unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). The
question before us is one of statutory interpretation, which is a question of law subject to
unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). The most
fundamental rule of statutory construction is that the intent of the legislature governs if
that intent can be ascertained. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528
(2014). An appellate court must first attempt to ascertain legislative intent through the
statutory language enacted, giving common words their ordinary meanings. Phillips, 299
Kan. at 495.



7

We apply the statute in effect at the time Parker committed his current crimes

Parker committed his current crimes on February 20, 2010. "'[T]he fundamental
rule for sentencing is that the person convicted of a crime is sentenced in accordance with
the sentencing provisions in effect at the time the crime was committed.'" Keel, 302 Kan.
at 589 (quoting State v. Overton, 279 Kan. 547, 561, 112 P.3d 244 [2005]). Therefore, the
applicable statute is K.S.A. 21-4710(d)(11).

That statute stated that prior convictions cannot be used to calculate the criminal
history if they were used to enhance the applicable penalties of the present conviction:

"Prior convictions of any crime shall not be counted in determining the criminal
history category if they enhance the severity level or applicable penalties, elevate the
classification from misdemeanor to felony, or are elements of the present crime of
conviction. Except as otherwise provided, all other prior convictions will be considered
and scored." (Emphasis added.) K.S.A. 21-4710(d)(11).

The legislature eliminated the "applicable penalties" language a couple of months after
Parker committed his crimes in this case, but before the district court sentenced him. See
K.S.A. 2010 Supp. 21-4710(d)(11) (effective April 8, 2010).

The interplay of convictions used to enhance a sentence and convictions used to
score a prior criminal history is not novel. In State v. Zabrinas, 271 Kan. 422, 24 P.3d 77
(2001), the Kansas Supreme Court examined the statute quoted above and held that the
conviction used to find that Zabrinas was a persistent sex offender could not also be used
to calculate his criminal history score. 271 Kan. at 443-44. The court found that K.S.A.
21-4710(d)(11) plainly prevents, in determining criminal history, the counting of a prior
conviction that was used to double the sentence under 21-4704(j). The court opined that
had the legislature intended to allow the double counting of the conviction, it could have
placed language in the statute evidencing that intent as it did with predatory sex
8

offenders. K.S.A. 21-4716(b)(2)(F)(ii)(a). Because the legislature failed to expressly
provide for the double counting as it did with predatory sex offenders, the Court refused
to allow the double counting for persistent sex offenders.

Thus, in accordance with the plain language of the statute in effect at the time
Parker committed his current crimes, the district court could not use a single prior crime
both to enhance Parker's "applicable penalties" and to count against his criminal history
score. Zabrinas (applying the provision of 21-4704(j) requiring doubling the maximum
duration of the presumptive imprisonment term to the sentence resulting from the lesser
criminal history score). See State v. Taylor, 27 Kan. App. 2d 62, 998 P.2d 123 (2000)
(holding prior conviction upon which classification of the defendant as persistent sex
offender has been made cannot be separately used to calculate his criminal history
category); cf. State v. Pearce, 51 Kan. App. 2d 116, 121, 342 P.3d 963 (addressing the
same issue after the elimination of the "applicable penalties" language; finding none of
the conditions for exclusion was met, so the prior burglary convictions should have been
included in criminal history scoring.) rev. denied 302 Kan. __ (August 20, 2015).

1992 Indecent liberties conviction

Under K.S.A. 2009 Supp. 21-4704(j) sentences are enhanced—by doubling—
when a defendant being sentenced for a sex crime with presumptive imprisonment has "at
least one conviction for a sexually violent crime." Parker has a prior conviction for
indecent liberties with a child, and that crime is statutorily designated as a "sexually
violent crime." K.S.A. 2009 Supp. 22-4902(c)(2). The journal entry reflects that the
district court applied special rules and determined Parker was a persistent sex offender
pursuant to K.S.A. 2009 Supp. 21-4704(j). Moreover, the PSI shows that Parker's 1992
indecent liberties conviction was used to enhance Parker's sentence. Accordingly,
contrary to the State's assertion, that conviction cannot also be counted in determining
Parker's criminal history score. See Zabrinas, 271 Kan. at 443-44.
9

1998 Aggravated burglary conviction

We are left with the State's assertion that Parker's 1998 aggravated burglary could
count as a prior person felony. Parker does not dispute that his two convictions for
attempted residential burglary in 2005 are countable person felonies.

K.S.A. 21-3716 defines aggravated burglary as, "without authority, entering into
or remaining within any building, manufactured home, mobile home, tent or other
structure, or any vehicle, aircraft, watercraft, railroad car or other means of conveyance
of persons or property in which there is a human being with intent to commit a felony,
theft or sexual battery therein." The elements of this crime show it to be a person felony.
Although the district court counted it as a sentencing enhancement, nothing prevents the
district court from counting it toward Parker's criminal history instead. Not using that
conviction as an enhancement has no effect on Parker's sentence, which is doubled based
on his prior indecent liberties conviction.

The State is thus correct that Parker's criminal history includes three person
felonies in addition to his indecent liberties conviction—his 1998 aggravated burglary,
and the two 2005 residential burglaries which Parker does not challenge. Accordingly,
Parker has an A criminal history score. See K.S.A. 2015 Supp. 21-6809 ("The offender's
criminal history includes three or more adult convictions or juvenile adjudications, in any
combination, for person felonies."). The district court sentenced Parker using an A
criminal history score; therefore, reclassifying the 1987 burglary conviction has no effect
on Parker's current sentence.

Where, as here, a defendant's criminal history score remains an A based on his
post-1993 convictions, we find arguments such as Parker's to be moot or harmless error.
See, e.g., State v. Goin, No. 113,204, 2016 WL 758320, at *3 (Kan. App. 2016)
(unpublished opinion); State v. Hampton, No. 113,553, 2016 WL 2609632, at *3 (Kan.
10

App. 2016); State v. Singleton, No. 112,997, 2016 WL 368083, at *3 (Kan. App. 2016);
State v. Thompson, No. 93,322, 2006 WL 399126, at *5 (Kan. App. 2004) (unpublished
opinion), rev. denied 281 Kan. 1381 (2006). Accordingly, Parker is not entitled to relief
from any error in the calculation of his criminal history score.

Affirmed.