State v. Steele

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NOT DESIGNATED FOR PUBLICATION

No. 115,270

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JERIMIAH R. STEELE,
Appellant.


MEMORANDUM OPINION

Appeal from Jackson District Court; JANICE D. RUSSELL, judge. Opinion filed December 9, 2016.
Affirmed.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, for appellee.

Before MALONE, C.J., GREEN, and LEBEN, JJ.

Per Curiam: Jerimiah R. Steele appeals his sentence following his conviction of
possession of methamphetamine. In determining Steele's sentence, the district court
classified two Colorado convictions for third-degree assault as person misdemeanors for
criminal history purposes. On appeal, Steele argues that this classification was erroneous
because it required the district court to engage in impermissible factfinding. For the
reasons stated herein, we reject Steele's argument and affirm his sentence.

The facts are straightforward. On October 1, 2015, the State charged Steele with
one count of possession of methamphetamine and one count of possession of drug
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paraphernalia. The crimes allegedly were committed on September 30, 2015. On October
8, 2015, Steele pled no contest to possession of methamphetamine in exchange for
dismissal of the other charge. At the sentencing hearing on November 13, 2015, Steele
agreed that his criminal history as reported in the presentence investigation (PSI) report
was correct, and his criminal history score was "H." The PSI report included two
convictions for third-degree assault from Colorado that were scored as person
misdemeanors. The district court sentenced Steele to 13 months' imprisonment but
granted him probation for 18 months. Steele timely appealed his sentence.

The only claim Steele raises on appeal is that the district court erred when it
classified his Colorado third-degree assault convictions as person misdemeanors. Steele
argues that the conduct prohibited by third-degree assault in Colorado is broader than the
conduct prohibited by the Kansas comparable offense of battery. As a result, Steele
claims that the only way the district court could find that his Colorado convictions were
comparable to battery in Kansas was to look at facts beyond the existence of the
convictions. According to Steele, this violates the rule that any fact which increases the
penalty for a crime beyond the statutory maximum must be proven to a jury beyond a
reasonable doubt, as set forth in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348.
147 L. Ed. 2d 435 (2000), and Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276,
186 L. Ed. 2d 438 (2013).

The State responds that this issue should not be considered for the first time on
appeal because Steele's probation term is not affected by the classification of his
Colorado third-degree assault convictions. According to the State, Steele should bring
this argument only if his probation is later revoked by the district court. Alternatively, the
State argues that Apprendi and Descamps have not been violated because Colorado's
third-degree assault statute is comparable to battery or aggravated battery in Kansas.
Because battery and aggravated battery are person offenses in Kansas, the State contends
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that the district court properly classified Steele's Colorado third-degree assault
convictions as person misdemeanors.

Whether a defendant's constitutional rights under Apprendi and Descamps have
been violated at sentencing is a question of law subject to unlimited review. State v.
Dickey, 301 Kan. 1018, 1036, 350 P.3d 1054 (2015). Also, whether a prior conviction
was properly classified as person or nonperson to calculate a defendant's criminal history
score is a question of law subject to unlimited review. 301 Kan. at 1034. Finally,
statutory interpretation is also a question of law over which appellate courts have
unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Although Steele failed to object to the classification of his Colorado convictions in
the district court, he may present this argument for the first time on appeal. K.S.A. 22-
3504(1) permits a defendant to challenge the classification of a prior conviction as a
person or nonperson offense for the first time on appeal. See Dickey, 301 Kan. at 1034.
Moreover, the State's contention that Steele can raise this issue only if his probation is
revoked is without merit. Steele's claim that his criminal history score was improperly
determined affects his sentence, and the issue is ripe for appeal. See State v. Proctor, 47
Kan. App. 2d 889, 896-99, 280 P.3d 839 (2012).

K.S.A. 2015 Supp. 21-6811(e) explains how a district court shall designate a prior
out-of-state conviction as a person or nonperson offense for criminal history purposes:

"(e)(1) Out-of-state convictions and juvenile adjudications shall be used in
classifying the offender's criminal history.
(2) An out-of-state crime will be classified as either a felony or a misdemeanor
according to the convicting jurisdiction:
. . . .
(3) The state of Kansas shall classify the crime as person or nonperson. In
designating a crime as person or nonperson, comparable offenses under the Kansas
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criminal code in effect on the date the current crime of conviction was committed shall be
referred to. If the state of Kansas does not have a comparable offense in effect on the date
the current crime of conviction was committed, the out-of-state conviction shall be
classified as a nonperson crime."

K.S.A. 2015 Supp. 21-6811(e)(1) provides that out-of-state convictions are
included in determining a defendant's criminal history score. Pursuant to K.S.A. 2015
Supp. 21-6811(e)(2), an out-of-state crime will be classified as either a felony or a
misdemeanor according to the convicting jurisdiction. Because Colorado classifies third-
degree assault as a misdemeanor, there is no dispute that Steele's out-of-state convictions
were properly classified as misdemeanors for criminal history purposes.

K.S.A. 2015 Supp. 21-6811(e)(3) provides that the state of Kansas shall classify
the out-of-state crime as person or nonperson. In designating a crime as person or
nonperson, comparable offenses under the Kansas criminal code in effect on the date the
current crime of conviction was committed shall be considered. K.S.A. 2015 Supp. 21-
6811(e)(3); State v. Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015), cert. denied 136 S. Ct.
865 (2016). If there is no comparable offense, the out-of-state conviction must be
classified as a nonperson crime. K.S.A. 2015 Supp. 21-6811(e)(3).

The first step in this analysis is to identify the elements of the out-of-state
convictions. Steele was first convicted of third-degree assault in Colorado in 2008. Colo.
Rev. Stat. § 18-3-204 (2008) provides: "A person commits the crime of assault in the
third degree if the person knowingly or recklessly causes bodily injury to another person
or with criminal negligence the person causes bodily injury to another person by means
of a deadly weapon." Steele's second conviction for third-degree assault occurred in
2012. Colo. Rev. Stat. § 18-204 (2012) provides:



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"(1) A person commits the crime of assault in the third degree if:
"(a) The person knowingly or recklessly causes bodily injury to another person or
with criminal negligence the person causes bodily injury to another person by means of a
deadly weapon; or
"(b) The person, with intent to infect, injury, harm, harass, annoy, threaten, or
alarm another person whom the actor knows reasonably should know to be a peace
officer, a firefighter, an emergency medical care provider, or an emergency medical
service provider, causes the other person to come into contact with blood, seminal fluid,
urine, feces, saliva, mucus, vomit, or toxic, caustic, or hazardous material by any means,
including throwing, tossing, or expelling the fluid or material."

The State argues that the comparable Kansas offenses are battery or aggravated
battery. Steele's current crime of conviction was committed on September 30, 2015.
K.S.A. 2015 Supp. 21-5413(a) defines "battery" as "(1) Knowingly or recklessly causing
bodily harm to another person; or (2) knowingly causing physical contact with a person
when done in a rude, insulting or angry manner." "Aggravated battery" includes
"knowingly causing bodily harm to another person with a deadly weapon." K.S.A. 2015
Supp. 21-5413(b)(1)(B).

Steele argues that because Colorado's third-degree assault statutes and Kansas'
battery statutes are not identical, the district court necessarily engaged in factfinding to
determine whether the statutes were applicable. Specifically, Steele argues that "[w]hile
the statutes appear similar, the conduct prohibited by the Colorado third degree assault
statute is broader than that of Kansas misdemeanor battery." Steel argues that Descamps
applies here and precludes classifying his Colorado convictions as person offenses. The
Kansas Supreme Court examined and applied Descamps in Dickey, 301 Kan. at 1036-37:

"In Descamps, the United States Supreme Court held that a defendant's prior conviction
for burglary under California law could not be counted as a predicate offense for burglary
under [the Armed Career Criminal Act (ACCA)], which increases the sentences of
defendants who have three prior convictions for violent felonies. Unlike the ACCA's
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'generic burglary' definition, the California burglary statute at issue did not require a
'breaking and entering'; it provided that a 'person who enters' certain locations 'with intent
to commit grand or petit larceny or any felony is guilty of burglary.' [Citation omitted.]
Consequently, in order to determine whether the defendant's California burglary
conviction qualified as a predicate offense under the ACCA, the sentencing court
reviewed the underlying facts of the prior conviction to determine whether the facts
showed that the defendant accomplished the burglary by breaking and entering. The
Descamps Court held that this examination violated Apprendi because the sentencing
court engaged in factfinding to determine whether the defendant's actions satisfied an
element not contained within the California burglary statute. [Citation omitted.]"

However, our Supreme Court has repeatedly and explicitly ruled that "crimes need
not have identical elements to be comparable for making the person or nonperson
designation." State v. Williams, 299 Kan. 870, 873, 326 P.3d 1070 (2014) (quoting State
v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 [2003]). For purposes of identifying a
comparable Kansas crime in the context of K.S.A. 2015 Supp. 21-6811(e), the Kansas
crime that is "'the closest approximation' of the out-of-state crime [is] a comparable
offense." Williams, 299 Kan. at 873. Instead of requiring identical elements, "[t]he
essential question is whether the offenses are similar in nature and cover similar conduct.
[Citations omitted.]" State v. Martinez, 50 Kan. App. 2d 1244, 1249, 338 P.3d 1236
(2014). See also State v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 784 (2010).

Here, when the Colorado and Kansas statutes are compared, it is apparent that they
are comparable. The 2008 Colorado third-degree assault statute prohibits knowingly or
recklessly causing bodily injury to another. This is precisely how the Kansas statute
defines battery. Steele claims the statutes are different because Colorado uses the term
bodily injury while Kansas uses the term bodily harm. However, this subtle difference in
language is of no effect. The statutes are similar in nature and cover similar conduct
because they both prohibit knowingly or recklessly harming or injuring another person.

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The 2012 Colorado third-degree assault statute is also comparable to Kansas'
battery statute. Steele claims the 2012 statute is different because it includes a provision
that prohibits causing a law enforcement officer, firefighter, or emergency medical
provider to come into contact with bodily fluids or other hazardous materials. While
Kansas does not have such an identical provision, this conduct is still prohibited under
the battery statute which prohibits knowingly causing physical contact with another
person done in a rude, insulting, or angry manner. K.S.A. 2015 Supp. 21-5413(a)(2).

This court previously has rejected arguments similar to Steele's argument on
appeal. See State v. Moore, 52 Kan. App. 2d 799, 810-811, 377 P.3d 1162 (2016)
(Apprendi is not implicated by statutory comparison because court only looks at statutory
elements and not facts underlying conviction); State v. Ohrt, No. 114,516, 2016
WL 3856321, at *6 (Kan. App. 2016) (unpublished opinion) (determining whether out-
of-state conviction is a person or nonperson offense does not require a factual
determination and is distinguishable from Dickey and Descamps). The district court
correctly determined that Steele's Colorado convictions were comparable to battery in
Kansas without engaging in factfinding. Battery was scored as a person offense in Kansas
at the time of Steele's current crime of conviction. See K.S.A. 2015 Supp. 21-5413(g)(1).
Because battery was scored as a person offense in Kansas at the time of Steele's current
crime of conviction, the district court properly classified Steele's Colorado convictions as
person misdemeanors without running afoul of Apprendi or Descamps.

Affirmed.