State v. Spain

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NOT DESIGNATED FOR PUBLICATION

Nos. 120,292
120,293

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARTINA SPAIN,
Appellant.


MEMORANDUM OPINION


Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed October 4,
2019. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Joan Lowdon, deputy county attorney, Todd Thompson, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., HILL and WARNER, JJ.

PER CURIAM: The sole issue in this consolidated appeal is whether Martina
Spain's criminal history score was correct. On the same day, Spain, in four cases, entered
no-contest pleas to 10 felony crimes and 3 misdemeanor charges. At sentencing, the court
considered the convictions from all four cases in deciding her criminal history score.
Spain contends this was erroneous because she had a global plea agreement with the State
and all of her cases were consolidated into one. She claims that by using the convictions
from the other cases, the court inflated her criminal history score and this caused an
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illegal sentence. Precedent teaches us otherwise. We hold the court correctly determined
her criminal history score and her sentence is not illegal. We affirm.

To unravel this problem, we will use the district court case numbers so the crimes
can be kept in order. Spain's plea agreement with the State covered all four separate
criminal cases for crimes committed between 2010 and 2014. Spain entered pleas of no
contest to the following:

 2013CR875 to three counts of felony possession with intent to distribute
methamphetamine;
 2013CR882 to one count of felony manufacture of methamphetamine, one
count of felony possession with intent to distribute methamphetamine, and
one count of felony possession without tax stamp;
 2013CR908 to a single felony count of possession of stolen property; and
 2014CR67 to three felony counts of theft and three misdemeanor counts of
theft.

And the State agreed to dismiss the remaining 17 charges and to recommend a
total prison term of 162 months with concurrent sentences in all cases and all counts.
Spain waived her right to appeal her sentence and acknowledged that if she did
successfully challenge her sentence, the State was free to reinstate any dismissed charges.

At Spain's plea hearing, the district court called the four cases together but
addressed each case separately. The court first took up 2013CR875 and explained to
Spain her sentence could range between 14 and 51 months for each count of possession
with intent to distribute, depending on her criminal history score. Spain entered pleas of
no contest to each of the three counts of possession with intent to distribute
methamphetamine, a severity level 3 nonperson felony. The district court accepted her
pleas and found her guilty of each count.
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Next came 2013CR882 on the manufacture of methamphetamine charge, another
possession with intent to distribute charge, and the no drug tax stamp charge. The court
informed Spain that the sentence range for the manufacturing charge, a severity level 1
felony, carried a sentence of between 138 and 204 months, depending on her criminal
history score. The court noted that the State agreed in the plea agreement to cap the
sentence at 162 months. "So even if you were to fall into A, B, C, or D box, which would
make it higher, there's been an agreement to leave it at 162 months." Spain said she
understood. The court similarly informed Spain that her possession with intent to
distribute charge carried a 92- to 144-month sentence, and the sentence for the tax stamp
charge ranged from 5 to 13 months, again depending on her criminal history score. The
court noted that her conviction on the manufacture count would "trump" the other
sentences, and Spain said she understood. She pled no contest to each charge and the
district court found her guilty of each count.

After that, the court took up 2013CR908, a charge of possession of stolen
property, and informed Spain that the sentence could range from 5 to 17 months. Spain
entered a plea of no contest and the court found her guilty.

Finally, the district court called 2014CR67, three felony counts of theft and three
misdemeanor counts of theft. The court told Spain of the sentence ranges for the charges.
Spain entered pleas of no contest to the six charges as agreed, and the district court found
her guilty of each.

The court dismissed any remaining charges and ordered a presentence
investigation report for each case.

Listing seven nonperson felony convictions and five nonperson misdemeanors, the
PSI report in 2013CR875 set Spain's criminal history score at E. Of the seven felony
convictions, three were attributed to 2013CR882, one to 2013CR908, and three to
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2014CR67. Those were the other cases disposed of in the plea agreement. Similarly, the
PSI report in 2013CR882 showed Spain's criminal history score was E, with seven
nonperson felony convictions and five nonperson misdemeanors. Of the seven felony
convictions, three were attributed to 2013CR875, one to 2013CR908, and three to
2014CR67, which were also disposed of in the plea agreement.

While the court at sentencing called all four cases, it specified that it would
sentence Spain on each case individually. The district court asked defense counsel if he
reviewed the PSI reports and, likewise, if he reviewed them with Spain. Defense counsel
and Spain both answered yes. The district court asked Spain, "And do you agree that your
criminal history scores out correctly at E level?" Spain said it was correct and she was
ready for sentencing.

The district court began with 2013CR882, found Spain's criminal history score to
be E, and sentenced her to 162 months for manufacture of methamphetamine. The district
court followed by sentencing Spain on the remaining counts in that case, and then
sentenced her on the remaining cases individually. Adhering to the plea agreement, each
sentence was ordered to be served concurrent with each other—and the controlling term
of imprisonment is 162 months.

Spain contends the court used an incorrect criminal history score.

As her sole issue on appeal, Spain contends that her sentences are illegal. She
claims that the four cases in which she pled were consolidated by operation of law under
the global plea agreement. She argues that none of the convictions under that agreement
can be used to calculate her criminal history score and enhance her sentences relative to
any of those consolidated cases. The State argues this issue is long settled against Spain
and her sentences should be affirmed.

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Spain argues her sentences did not conform to the applicable statutory provisions
because her criminal history score was not calculated properly. Thus, in her view, her
sentences are illegal.

In calculating an offender's criminal history score, all prior convictions must be
counted unless the convictions constitute an element of the present crime, enhance the
severity level, or elevate the classification from a misdemeanor to a felony. K.S.A. 2018
Supp. 21-6810; State v. Kelly, 298 Kan. 965, 976, 318 P.3d 987 (2014). A prior
conviction under the Kansas Sentencing Guidelines Act is any conviction, other than
another count in the current case brought in the same charging document or joined for
trial under K.S.A. 22-3203, that occurred before sentencing in the current case, no matter
if the offense that led to the prior conviction occurred before or after the commission of
the current offense or the conviction in the current case. K.S.A. 2018 Supp. 21-6810;
State v. Keel, 302 Kan. 560, 574, 357 P.3d 251 (2015).

Two cases guide us. The first is State v. Roderick, 259 Kan. 107, 116, 911 P.2d
159 (1996), which held that multiple convictions entered on the same day in different
cases are considered separate convictions when calculating a defendant's criminal history
score. Our court in State v. Long, No. 114,699, 2016 WL 3219109, at *1 (Kan. App.
2016) (unpublished opinion), rev. denied 306 Kan. 1326 (2017), followed the ruling in
Roderick. In that case, Long had pled guilty in four different burglary cases on the same
day and our court held that the district court properly considered Long's prior person-
felony convictions as four separate convictions in calculating his criminal history. We
find the reasoning in Long persuasive.

On this point, Spain also argues that because her four cases were addressed in a
"global" plea agreement, they were "consolidated by operation of law," and she suggests
they should be treated as one case for calculating her criminal history score. She notes
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that the district court, sua sponte, consolidated two of the cases for trial—those two at
issue in this appeal, 2013CR875 and 2013CR882—in January 2014.

In effect, Spain suggests that all the cases should have been treated as if they were
in one complaint and not used to enhance her criminal history score for sentencing. She
argues, essentially, that the district court violated the "double sentence rule"—K.S.A.
2018 Supp. 21-6819(b)(4)—when it used the various convictions in the four cases under
the plea agreement to calculate her criminal history score of E for the base count in each
of the cases. Spain cites no authority in support of this argument or for her interpretation
of the statutes. Failure to support a point with pertinent authority or show why it is sound
despite a lack of supporting authority or in the face of contrary authority resembles
failing to brief the issue. State v. Pewenofkit, 307 Kan. 730, 731, 415 P.3d 398 (2018).
We reject her argument on this for her failure to provide authority or meaningfully
distinguish Roderick and Long.

Moving on, the second Supreme Court precedent teaches a rule contrary to Spain's
view. In State v. McCurry, 279 Kan. 118, 105 P.3d 1247 (2005), the defendant was
charged with aggravated robbery in three separate cases. These cases were consolidated
for trial and, after his conviction, the district court sentenced the defendant to three
consecutive 64-month prison terms for 192 months. The defendant challenged his
sentence arguing that because they had been tried together, the three cases should be
considered "'multiple counts in a single complaint'" and were therefore subject to the
double rule in K.S.A. 2003 Supp. 21-4720(b)(4)—now K.S.A. 2018 Supp. 21-6819(b)(4).

The McCurry court found that the double rule applied to convictions "in a single
charging complaint, information, or indictment," but not to criminal cases consolidated
for trial. 279 Kan. at 124-25. The court rejected the defendant's argument that cases
consolidated for trial under K.S.A. 22-3203 effectively merged into one complaint—and
were thus subject to the double rule. The court found that K.S.A. 22-3203 merely gave
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the State the option of placing similar charges in either one complaint or separate
complaints that could be consolidated for trial. Ultimately, the court held that the double
rule did not apply to cases consolidated for trial, and that courts can use the same
criminal history score when calculating a sentence for each case consolidated in this way.
279 Kan. at 126-27. See State v. Powell, No. 114,581, 2016 WL 6821966, at *1 (Kan.
App. 2016) (unpublished opinion).

The precedents in Roderick and McCurry control the outcome here. This court is
duty bound to follow Kansas Supreme Court precedent, absent some indication the
Supreme Court is departing from its previous position. State v. Meyer, 51 Kan. App. 2d
1066, 1072, 360 P.3d 467 (2015). Spain's multiple convictions entered on the same day in
different cases were appropriately considered separate convictions when calculating her
criminal history score. See Roderick, 259 Kan. at 116. And neither the district court's
consolidation of cases 2013CR875 and 2013CR882 for trial, nor the global plea
agreement that disposed of all four cases in the same proceeding, triggered the double
rule. The district court thus appropriately used the same criminal history score of E in
sentencing Spain in both 2013CR875 and 2013CR882. See McCurry, 279 Kan. at 127.

There is no sentencing error here.

Affirmed.