State v. Riley

1

NOT DESIGNATED FOR PUBLICATION

No. 115,976

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KENNETH FREDERICK RILEY,
Appellant.


MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed June 30, 2017.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Stephen P. Jones, county attorney, and Derek Schmidt, attorney general, for appellee

Before GARDNER, P.J., PIERRON, J., and BURGESS, S.J.

Per Curiam: Kenneth Frederick Riley contends that his sentence should be
reduced because his criminal history score was based on juvenile adjudications which
have decayed. He also asserts that the district court violated his constitutional rights to
due process and a jury trial by using his juvenile adjudications to calculate his criminal
history score. We disagree and affirm.




2

Procedural and factual background

Riley was suspected of conspiring to commit aggravated burglary and conspiring
to commit theft. At the preliminary hearing, Riley's stepson testified that Riley suggested
a scheme in which the stepson and some of his friends would burglarize homes. Riley
acted as the ringleader by providing a gun and advice on how to conduct the burglaries.
After discussing and agreeing to the burglary scheme, the stepson and other conspirators
burglarized two homes. After being arrested, Riley's coconspirators implicated Riley in
the burglary conspiracy. Pursuant to a plea agreement, Riley entered no contest pleas to
two counts of aggravated burglary.

Riley's criminal history was initially scored as a B. Riley disputed two juvenile
adjudications used to calculate his criminal history score: A May 10, 1982, adjudication
for aggravated assault and a November 14, 1986, adjudication for residential burglary. At
sentencing, Riley introduced evidence that the residential burglary was actually a
vehicular burglary and argued that the State could not score it as a person felony. Riley
then argued that the State had failed to provide a verified journal entry for the aggravated
assault conviction and that the district court could not use the prior aggravated assault
conviction to calculate his criminal history score.

The State conceded that the vehicular burglary was a nonperson felony. However,
the district court found that Riley had failed to meet the burden of proving that the
aggravated assault did not occur. Ultimately, Riley's criminal history was scored as a D.
The district court sentenced Riley to 55 months for the first count of aggravated burglary,
to 34 months for the second count of aggravated burglary, and ordered the sentences to
run consecutively.

Riley then filed a motion to correct an illegal sentence. The district court initially
granted the motion, finding one of his juvenile adjudications had decayed so his criminal
3

history should have been scored as an E. The State filed a motion to reconsider arguing
that the district court had relied on the wrong statutory provision in granting Riley's
motion and that Riley's criminal history should be scored as a C. The district court then
agreed with the State and reversed its decision to modify Riley's sentence. It declined,
however, to resentence Riley using a criminal history score of C because the State had
agreed at the sentencing hearing that Riley's score was a D. The district court also noted
the State failed to object to the criminal history score at the January 14, 2013, sentencing
hearing.

The district court granted the State's motion to reconsider on April 4, 2016. In
2015, the legislature amended K.S.A. 21-6810 to include a subsection which provides:
"[A]mendments made to this section by this act are procedural in nature and shall be
construed and applied retroactively." L. 2015, ch. 5, § 1. In 2016, the legislature again
amended K.S.A. 21-6810 and expanded the scope of juvenile adjudications that decay for
purposes of calculating an offender's criminal history score. L. 2016, ch. 97, § 1. Decay
factor means "prior convictions that are no longer considered as part of an offender's
criminal history score." K.S.A. 2016 Supp. 21-6803(e).

Is Riley entitled to resentencing because of amendments to K.S.A. 21-6810 which
expanded the scope of which juvenile adjudications decay for purposes of calculating
criminal history scores?

Riley argues that the Kansas legislature, by amending K.S.A. 21-6810, has
expanded the scope of juvenile adjudications that decay for purposes of calculating his
criminal history scores. He asserts that now only two categories of juvenile adjudications
do not decay: offenses that would have been a class A, B, or C felony, and any "nondrug
severity level 1 through 4 person felony if committed by an adult." (Citing K.S.A. 2016
Supp. 21-6810[d][3][B]). Riley contends that his prior aggravated assault adjudication
has retroactively decayed because it would have been a class D felony and is a severity
4

level 7 offense under the current guidelines. Riley also argues that under K.S.A. 2016
Supp. 21-6810(d)(4)(A), any juvenile offense that would have been a class D or E felony,
if committed by an adult, decays if a subsequent offense is committed after the defendant
reaches the age of 25.

The State acknowledges that K.S.A. 2016 Supp. 21-6810(e) expressly provides
that "amendments made to this section . . . are procedural . . . and shall be . . . applied
retroactively." However, the State argues that any statutory provisions that establish
criminal offenses or punishments are substantive in nature and that substantive provisions
are barred from retroactive application. The State argues that "accepting K.S.A. 2016
Supp. 21-6810(e) at face value creates an absurd result" because "untold numbers of
offenders with otherwise final sentences will be entitled to a criminal history score
recalculation." The State asserts that the retroactivity language found in K.S.A. 2016
Supp. 21-6810(e) was a legislative response to Kansas Supreme Court precedent which
modified the "Kansas criminal history classification system." The State argues that the
legislature did not intend for courts to recalculate the criminal history scores of all
persons with a juvenile adjudication and that a contrary interpretation would be
untenable.

Our court has recently considered whether the statutory amendments at issue
should be retroactively applied. In Parker v. State, Parker argued that he should be
resentenced because his criminal history score was based on juvenile adjudications which
had retroactively decayed due to the 2016 amendments to K.S.A. Supp. 21-6810. Parker,
No. 115,267, 2017 WL 947821, at *1 (Kan. App. 2017) (unpublished opinion), petition
for rev. filed May 4, 2017. Parker reasoned that the legislature did not intend to
retroactively apply the decay provisions of K.S.A. 2016 Supp. 21-6810 because the
legislature did not use "specific language" or provide any mechanisms to resentence
offenders with criminal history scores based on juvenile adjudications. 2017 WL 947821,
at *4. Parker noted that in the past, the legislature has provided for "conversion of pre-
5

Sentencing Guidelines Act sentences to Guideline sentences in express and limited
situations." 2017 WL 947821, at *4. Parker found the lack of legislative guidance on
resentencing offenders and the practical effect that numerous offenders would need to be
resentenced as evidence that the legislature did not intend to retroactively apply the decay
provisions of K.S.A. 2016 Supp. 21-6810. We find Parker to be persuasive and adopt its
reasoning here.

"Interpretation of sentencing statutes is a question of law subject to de novo
review." State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). "The most
fundamental rule of statutory construction is that the intent of the legislature governs if
that intent can be ascertained." State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417
(2016). Generally, statutes operate prospectively unless there is clear legislative intent to
the contrary. State v. Bernhardt, 304 Kan. 460, 479, 372 P.3d 1161 (2016). A statutory
change may be applied retroactively, however, when the change is "'"merely procedural
or remedial in nature and does not prejudicially affect the substantive rights of the
parties."' [Citations omitted.]" 304 Kan. at 479. A statute that defines the "'length or type
of criminal punishment is substantive.'" State v. Roseborough, 263 Kan. 378, 381, 951
P.2d 532 (1997). When the legislature expressly provides that a statute is to be applied
retroactively, it is unnecessary to engage in the substantive versus procedural analysis.
See State v. Todd, 299 Kan. 263, 275, 323 P.3d 829 (2014).

The legislature explicitly provided that "amendments made to [K.S.A. Supp. 21-
6810] are procedural in nature and shall be construed and applied retroactively." K.S.A.
2016 Supp. 21-6810(e). Therefore, it is not necessary to determine whether the decay
provisions at issue are procedural or substantive. See Todd, 299 Kan. at 275. However,
the legislative intent behind the decay amendments at issue is ambiguous because the
legislature has not provided any guidance on resentencing offenders who received longer
sentences due to a criminal history score based on juvenile adjudications. As Parker
notes, "if we applied the 2016 amendments retroactively, it would entitle anyone serving
6

a sentence based on a criminal history score that included certain juvenile adjudications
to be resentenced." 2017 WL 947821, at *4.

Furthermore, the legislature typically provides some guidance when it intends to
retroactively affect a convicted offender's criminal liability. See State v. Jeffries, 304
Kan. 748, 751-53, 375 P.3d 316 (2016) (discussing statutory authority to convert
sentences for criminal history scores based on convictions in other jurisdictions); Todd,
299 Kan. at 275-76 (discussing statutory amendment to be retroactively applied to
eliminate lesser included offense of felony murder in cases pending appeal);
Roseborough, 263 Kan. at 383-86 (discussing retroactivity provision with specific
timetable and procedure for criminal sentence conversion). The 2016 amendments
provide no such mechanism by which to undertake the massive task of resentencing all
persons whose criminal history includes juvenile adjudications. See Parker, 2017 WL
947821, at *4.

The general rule is that the criminal statutes and penalties in effect at the time the
criminal offense occurs are controlling. State v. Denney, 278 Kan. 643, 646, 101 P.3d
1257 (2004). The likely legislative intent behind the decay provisions at issue was to
modify the general rule as it relates to calculating criminal history scores of offenders
who committed an offense before the amendment went into effect but were sentenced
afterwards. Nothing in K.S.A. 2016 Supp. 21-6810 expressly states that offenders should
be resentenced if their criminal history scores were based on juvenile adjudications that
would have decayed if sentenced after the 2016 amendments. It is unlikely that the
legislature intended to resentence all offenders with criminal history scores based on
juvenile adjudications by waiting for such offenders to file the appropriate motions to
modify their sentences. Therefore, we do not construe the 2016 amendments to K.S.A.
21-6810 as a legislative mandate that requires resentencing for all offenders with a
criminal history score based on juvenile adjudications. Accordingly, we find no error in
the criminal history score used by the district court.
7

Did the district court violate Riley's constitutional rights to a jury trial and due process
by using Riley's juvenile adjudications to calculate his criminal history score?

Riley acknowledges that the Kansas Supreme Court has approved the use of
juvenile adjudications in calculating criminal history scores but argues that the Kansas
Supreme Court is "erroneous and must be overturned." Riley argues that United States
Supreme Court precedent requires any fact that increases a sentence beyond the statutory
maximum to be proved beyond a reasonable doubt before a jury. Riley acknowledges,
however, an exception to the general rule and admits that prior convictions based on
pleas or guilty verdicts rendered by a jury may generally be used to enhance a sentence.
Riley argues that his juvenile adjudications are distinguishable from other criminal
convictions because they do not include a right to a jury trial. Riley relies on an Ohio case
in asserting that his juvenile adjudications did not have the protections inherent in a
conviction after a jury trial and that calculating his criminal history score by using his
juvenile adjudications would violate his constitutional rights to due process and a jury
trial. See State v. Hand, 149 Ohio St.3d 94, 103 at ¶ 30-31, 2016 Ohio 5504, 73 N.E.3d
448 (2016) (O'Donnell, J. dissenting), cert. denied 137 S. Ct. 1074 (2017).

The State points out that juvenile adjudications in Ohio are civil in nature while
juvenile adjudications in Kansas are more akin to criminal proceedings. The State notes
that Hand's dissent acknowledges that the Ohio decision conflicts with the decisions of
other jurisdictions, including Kansas. 149 Ohio St.3d at 108, ¶ 48.

In Apprendi v. New Jersey, the United States Supreme Court considered whether
the "Due Process Clause of the Fourteenth Amendment requires that a factual
determination authorizing an increase in the maximum prison sentence for an offense
from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt."
530 U.S. 466, 469, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Apprendi's general rule is
"any fact that increases the penalty for a crime beyond the prescribed statutory maximum
8

must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
However, the Apprendi Court recognized an exception and held that a "prior conviction"
may be used to enhance a sentence without having a jury decide whether the fact had
been proven beyond a reasonable doubt. 530 U.S. at 490.

The constitutional challenge raised by Riley was first addressed by the Kansas
Supreme Court in State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002). Hitt argued that under
Apprendi, "juvenile adjudications are not prior convictions, and, more importantly, unlike
adult convictions, juvenile adjudications do not result from proceedings in which the
defendant has a right to a jury trial." 273 Kan. at 226-27. Furthermore, Hitt contended
that because juvenile adjudications are not prior convictions, the Apprendi exception does
not apply so his juvenile adjudications should have been submitted to a jury. 273 Kan. at
226-27. The Kansas Supreme Court disagreed and found that Apprendi's prior conviction
exception includes juvenile adjudications:

"Juvenile adjudications are included within the historical cloak of recidivism and enjoy
ample procedural safeguards; therefore, the Apprendi exception for prior convictions
encompasses juvenile adjudications. Juvenile adjudications need not be . . . proven to a
jury beyond a reasonable doubt before they can be used in calculating a defendant's
criminal history score under the [Kansas Sentencing Guidelines Act]." 273 Kan. at 236.

In State v. Fischer, 288 Kan. 470, 475, 203 P.3d 1269 (2009), the Kansas Supreme
Court revisited this issue and reaffirmed Hitt's holding for all juvenile adjudications final
on or before June 20, 2008. Fischer reasoned that juvenile adjudications in Kansas after
June 20, 2008, are akin to adult prosecutions because juveniles adjudicated after that date
have a right to a jury trial. 288 Kan. at 474-76. Thus, juvenile adjudications that become
final after June 20, 2008, must be submitted to a jury and proved beyond a reasonable
doubt before they may be used to calculate a criminal history score. In State v. Waller,
299 Kan. 707, 728-29, 328 P.3d 1111 (2014), the Kansas Supreme Court reaffirmed
Fischer and held that juvenile adjudications that were final before June 20, 2008, could
9

be considered in calculating criminal history scores under the Apprendi exception. Such
is the case here.

Both of Riley's juvenile adjudications were final before June 20, 2008. Riley's
juvenile adjudication for aggravated assault occurred on May 10, 1982, and his juvenile
adjudication for vehicular burglary occurred on November 14, 1986. Therefore, the
district court did not violate Riley's constitutional rights by using Riley's juvenile
adjudications to calculate his criminal history.

Affirmed.