State v. Sherrod

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NOT DESIGNATED FOR PUBLICATION

No. 114,218

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM SHERROD,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed December 30,
2016. Remanded with directions.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., GREEN and BUSER, JJ.

BUSER, J.: William Sherrod appeals the district court's denial of his motion to
correct an illegal sentence. Additionally, while this appeal was pending, Sherrod filed a
second motion to correct illegal sentence in the Court of Appeals under this appellate
case number. This second motion was based on a different ground than Sherrod presented
in his first motion and the ground he later raised on appeal. For the reasons discussed in
this opinion, this case is remanded to the district court with directions to consider and rule
on the latest motion filed by Sherrod in the Court of Appeals.


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FACTUAL AND PROCEDURAL BACKGROUND

On November 9, 2004, Sherrod was convicted of attempted aggravated indecent
liberties with a child, a severity level 5 person felony, in violation of K.S.A. 21-3504 and
K.S.A. 21-3301. See State v. Sherrod, 40 Kan. App. 2d 564, 194 P.3d 593 (2008).

Sherrod's presentence investigation (PSI) report calculated his criminal history
score as an A based upon the classification of three of his four prior military convictions
as person felonies. In particular, while stationed at Fort Bragg in North Carolina, Sherrod
received two military convictions for burglary, which the PSI described as aggravated
burglaries, and two convictions for assault, which the PSI described as an aggravated
battery and an assault consummated by a battery upon a child under 16 years of age. See
10 U.S.C. § 928 (2012); 10 U.S.C. § 929 (2012). The convictions which the PSI
described as aggravated burglary and aggravated battery were classified as person
felonies and the conviction listed as an assault consummated by a battery upon a child
was classified as a person misdemeanor.

At sentencing on March 31, 2005, Sherrod acknowledged that the aggravated
battery conviction had been properly scored as a person felony, but he challenged the
manner in which the two aggravated burglaries were scored. Sherrod claimed his military
convictions were not comparable to the Kansas offense of aggravated burglary because
the intent required to commit burglary under the Uniform Code of Military Justice
(UCMJ) is broader than the intent required to commit an aggravated burglary under
Kansas law.

During sentencing, the State presented testimony from Captain Erin Zetterstrom, a
Judge Advocate General for the United States Army describing Sherrod's military
convictions. The captain's testimony focused on Sherrod's General Court-Martial Order,
which "reflect[ed] the charges [against Sherrod] as well as the specifications for each
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charge[, in a manner similar to a charging document,] and when [Sherrod] was
sentenced."

After considering the parties' arguments, the district court found that Sherrod's
criminal history had been calculated correctly. In particular, the district court ruled that
Sherrod's criminal history based on his military convictions was comparable to Kansas
offenses for aggravated battery, misdemeanor battery, and two counts of aggravated
burglary. Based in part on the district court's findings, the court sentenced Sherrod to the
standard presumptive sentence for an offender with a criminal history score of A and a
conviction for a severity level 5 person felony, which resulted in a prison term of 130
months, followed by 24 months' postrelease supervision.

Sherrod filed a direct appeal, but, finding no reversible error, our court affirmed
the conviction. Sherrod, 40 Kan. App. 2d at 564, 569, 572. Sherrod petitioned our
Supreme Court for review, but his request was denied.

About 5 years later, on June 5, 2014, Sherrod filed a pro se motion to correct
illegal sentence pursuant to K.S.A. 22-3504(1). Relying upon State v. Murdock, 299 Kan.
312, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan. 560, Syl. ¶ 9, 357 P.3d
251 (2015), cert. denied 136 S. Ct. 865 (2016), Sherrod asserted that the sentencing court
erroneously calculated his criminal history score when it classified his three military
convictions as person felonies, rather than nonperson felonies. Following a
nonevidentiary hearing, the district court denied Sherrod's motion based upon its finding
that Murdock did not apply retroactively to Sherrod's sentencing. Sherrod filed a notice of
appeal on March 2, 2015.

On January 13, 2016, Sherrod filed his appellant's brief in our court. In his brief,
Sherrod claimed the district court erred when it denied his motion to correct an illegal
sentence. Although Sherrod premised his pro se motion upon Murdock, on appeal, he
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opted to abandon this argument which our Supreme Court explicitly overruled in Keel,
302 Kan. 560, Syl. ¶ 9. Now, for the first time, Sherrod appealed the district court's
criminal history calculation based on the United States Supreme Court's holdings in
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), as
applied by our Supreme Court in State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015).
Specifically, Sherrod claimed the district court erred during sentencing when it calculated
his criminal history score because the court engaged in unconstitutional judicial fact
finding regarding three of his prior military convictions. According to Sherrod, this
resulted in the erroneous classification of these offenses as person felonies for criminal
history scoring purposes. On May 18, 2016, the State filed its appellee's brief, arguing
that Sherrod's military convictions were correctly scored by the district court.

On July 25, 2016, our court filed a show cause order directing the parties to serve
written responses regarding whether Sherrod's sentencing claims were rendered moot
because he had served the prison portion of his sentence. Both parties filed responsive
memoranda.

Sherrod's appeal was scheduled for oral argument on August 16, 2016, at the
United States District Court, in Kansas City, Kansas. Six days prior to oral argument, on
August 10, 2016, Sherrod filed in our court a new motion to correct illegal sentence.
Inexplicably, this original motion was filed as part of Sherrod's appeal of the district
court's denial of his first motion to correct illegal sentence. Moreover, this motion raised
an entirely new ground for Sherrod's claim that his sentence was illegal. In short, Sherrod
now asserted, "since the UCMJ is exempted from the federal sentencing procedures and
provisions, and because the UCMJ makes no distinctions for felonies and misdemeanors,
Defendant's prior convictions are neither misdemeanors nor felonies."

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At oral argument, our court raised questions regarding the procedural posture of
this appeal given Sherrod's latest motion to correct illegal sentence. District Attorney
Jerome Gorman orally requested that the matter of Sherrod's illegal sentence be remanded
to the district court for consideration of the latest motion. This court also allowed the
State to file a response to Sherrod's latest motion and to supplement the record.

ANALYSIS

Sherrod appeals the district court's denial of his motion to correct illegal sentence.
His pro se motion was predicated on a legal basis that Sherrod has now abandoned after
the district court's adverse ruling and our Supreme Court's recent opinion in Keel, 302
Kan. 560, Syl. ¶ 9.

The new ground Sherrod raises on appeal was not presented to the district court
but was based on that court's alleged judicial fact finding in comparing the elements of
Sherrod's military convictions under the UCMJ with elements of the Kansas crimes of
aggravated battery and aggravated burglary. The crux of Sherrod's argument is presented
in his appellant's brief:

"K.S.A. 21-6811(e) provides for the classification of out-of-state offense[s] for
criminal history purposes. If a crime is a felony in the other state, it will be treated as a
felony in Kansas. It appears the military treated Mr. Sherrod's conviction as a felony, so
it must be treated as such in Kansas. However, the determination of whether an offense is
treated as a person or nonperson felony is based upon a comparison to the Kansas
statutes. K.S.A. 21-6811(e)(1)(3). . . .
. . . .
"The problem in this case is that the district court did not merely use the fact or
the existence of Mr. Sherrod's prior UCMJ burglary convictions to enhance his criminal
history. Because of its expanded specific intent element, the UCMJ burglary statute
criminalizes conduct beyond that of Kansas burglary statutes. Thus, the district court was
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required to engage in additional factfinding outside the facts proven by the existence of
the prior UCMJ burglary convictions." (Emphasis added.)

As is readily apparent, on appeal, Sherrod conceded that his prior convictions
under the UCMJ were felonies, but he contested the district court's judicial fact finding in
determining that those UCMJ felonies were person felonies rather than nonperson
felonies.

Turning now to Sherrod's latest motion to correct illegal sentence which was filed
in our court, Sherrod raises yet another new and different basis for our court to find that
his sentence is illegal. According to Sherrod's latest motion, he argues that K.S.A. 2004
Supp. 21-4711(e) provides that an out of state crime should be classified as either a
felony or misdemeanor according to the convicting jurisdiction. Moreover, that statute
also provides that convictions within the federal system are considered out of state
convictions. Sherrod claims that a problem arises, however, because under 10 U.S.C. §
801 et seq. (2012), the UCMJ does not designate crimes as felonies or misdemeanors.
Thus, Sherrod argues that his prior military crimes are neither felonies nor misdemeanors
and must be unscored, or alternatively, scored as misdemeanors.

It is obvious that Sherrod's latest motion which asserts that his military convictions
are not felonies is directly contradictory to the argument Sherrod presents in his
appellant's brief: "It appears the military treated Mr. Sherrod's conviction as a felony, so
it must be treated as such in Kansas." Although Sherrod's argument in the latest motion is
contrary to the argument he makes on appeal, he does not inform us if he is now
abandoning the argument he makes in his appellant's brief.

There are additional problems which this latest motion presents. Sherrod's motion
and argument were never considered by the district court. Generally, issues not raised
before the trial court may not be raised on appeal. State v. Kelly, 298 Kan. 965, 971, 318
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P.3d 987 (2014). Moreover, constitutional grounds for reversal asserted for the first time
on appeal are also not properly before the appellate court for review. State v. Godfrey,
301 Kan. 1041, 1043, 350 P.3d 1068 (2015).

While there are exceptions to this rule, in his motion, Sherrod does not identify
any exceptions that would be applicable. This is important because Supreme Court Rule
6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires an appellant to explain why an issue that
was not raised below should be considered for the first time on appeal. Such an
explanation is especially necessary in this case because Sherrod's latest motion was not
even filed in the district court, but filed as an original motion in the Court of Appeals.
Sherrod was sentenced 11 years ago, he filed his motion to correct illegal sentence 2 and
1/2 years ago, and he has not proffered any legal or practical justification for not
presenting this latest motion and argument prior to 6 days before oral argument on the
appeal of his first motion. Litigants who fail to comply with Supreme Court Rule
6.02(a)(5) risk a ruling that the issue is improperly briefed and will be deemed waived or
abandoned. Godfrey, 301 Kan. at 1044.

We also must consider the State's request made during oral argument to remand
the matter of Sherrod's claim of an illegal sentence to the district court in order that the
latest argument may be fully briefed by the parties and reviewed by the district court.
Although Sherrod's latest argument is principally one of statutory interpretation, we note
that in the original sentencing the State produced Captain Zetterstrom to provide expert
legal testimony regarding Sherrod's military charges, pleas, convictions, and sentencing
under the provisions of the UCMJ. Given Sherrod's latest argument and the unique
aspects of the UCMJ system, there is a possible need for additional expert legal testimony
to resolve this matter. Of course, such testimony would need to be presented in the
district court not an appellate court.

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Sherrod's latest issue deserves full briefing before the district court and our court.
Sherrod's three page motion does not adequately address the legal complexities of his
argument. We are unwilling to consider and rule on this matter without a full and
complete presentation of the argument. All things considered, rather than deny Sherrod's
latest motion for the procedural reasons discussed earlier, we are persuaded that the better
course is to grant the State's request for a remand to allow the district court to consider
and rule on the motion.

This case is remanded to the district court with directions for the court to consider
and rule on the latest motion filed by Sherrod in the Court of Appeals.

Remanded with directions.