State v. Stuart

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NOT DESIGNATED FOR PUBLICATION

No. 118,818

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DERRICK L. STUART,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
December 7, 2018. Affirmed in part, sentence vacated, and case remanded with directions.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., BUSER, J., and SIDNEY R. THOMAS, District Judge, assigned.

PER CURIAM: Derrick L. Stuart raises two separate issues in this appeal. First,
Stuart contends the district court erred in revoking his probation and ordering his
commitment to prison without imposing intermediate sanctions. Second, Stuart argues
that the district court imposed an illegal sentence based on an incorrect criminal history
score. Upon our review we conclude the district court did not err in revoking Stuart's
probation. However, we hold the district court erred in sentencing Stuart based on an
erroneous criminal history score. Accordingly, we affirm the district court's revocation of
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probation and prison commitment but vacate the sentence and remand for resentencing in
keeping with Stuart's correct criminal history score.

FACTUAL AND PROCEDURAL BACKGROUND

Stuart pled guilty to distribution of 5.27 grams of marijuana in May 2017. A
presentence investigation (PSI) report showed that his criminal history score was A. This
score was based on five prior person felony convictions. Three of the convictions
occurred in Arkansas: a 1983 conviction for burglary, a 1983 conviction for attempted
burglary, and a 1988 conviction for burglary. Given a criminal history score of A, Stuart's
presumptive sentence was imprisonment. The district court sentenced Stuart to 51 months
in prison but departed from the presumptive sentence and granted him probation.

A few months after sentencing, in July 2017, Stuart stipulated to violating his
probation by consuming alcohol. As a consequence, the district court imposed a two-day
jail sanction. In November 2017, Stuart again admitted to violating his probation by
failing to attend drug and alcohol treatment, not verifying his job search activities, failing
to obtain full time employment, not providing verification of community service hours,
and failing to report to his probation officer. Stuart also tested positive for ingesting
cocaine. As a result, the district court revoked Stuart's probation and ordered his
commitment to prison.

Stuart appeals.

PROBATION REVOCATION

For his first issue on appeal, Stuart contends the district court erred by revoking
his probation without first imposing intermediate sanctions. In support, Stuart asserts the
statute relied upon by the district court to bypass intermediate sanctions, K.S.A. 2017
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Supp. 22-3716(c)(9)(B), was not in effect at the time he was sentenced and, as a result, its
provisions were not applicable in this case.

We begin the analysis with a brief mention of our standards of review. "Where the
issue is the propriety of the sanction imposed by the district court for a probationer's
violation of the terms and conditions of probation, the standard of review is an abuse of
discretion." State v. Hurley, 303 Kan. 575, 580, 363 P.3d 1095 (2016). A judicial action
constitutes an abuse of discretion if (1) no reasonable person would take the view adopted
by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact.
State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). Since our review also
involves interpretation of Kansas statutes, these matters are questions of law for which
appellate courts have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d
1098 (2015).

K.S.A. 2017 Supp. 22-3716(c) delineates the sanctions a district court can impose
upon finding a probation violation. Typically, the district court is required to impose
intermediate sanctions before it is permitted to revoke an offender's probation. K.S.A.
2017 Supp. 22-3716(c)(1). However, there are several exceptions. The pertinent
exception the district court relied upon in this case allows the district court to revoke
probation without imposing graduated sanctions if probation was originally granted as a
dispositional departure. K.S.A. 2017 Supp. 22-3716(c)(9)(B). This specific subsection
went into effect on July 1, 2017. L. 2017, ch. 92, § 8. Important to the resolution of the
issue on appeal, the relevant statutory subsection was in effect after Stuart committed the
crime but before his latest probation violation.

In the district court, Stuart did not object to the court's reliance on K.S.A. 2017
Supp. 22-3716(c)(9)(B). However, he claims our court may consider this matter on
appeal because this issue presents a question of law arising on proved or admitted facts
and it is finally determinative of the case. Despite Stuart's lack of objection in the district
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court, we will consider his argument for the first time on appeal. See State v. Foster, 290
Kan. 696, 722, 233 P.3d 265 (2010).

A "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." State v. Overton, 279 Kan. 547, 561, 112 P.3d 244 (2005). Citing this rule,
Stuart argues that the district court erred by applying a statute that was not in effect at the
time he committed the offense. In short, he asserts the district court erred by applying the
statutory subsection retroactively.

Generally, "a statute operates only prospectively unless there is clear language
indicating the legislature intended otherwise. An exception to this rule has been
employed when the statutory change is merely procedural or remedial in nature and does
not prejudicially affect the substantive rights of the parties. [Citations omitted.]" State v.
Wells, 297 Kan. 741, 761, 305 P.3d 568 (2013).

In the present case, the Legislature evidently intended for K.S.A. 2017 Supp. 22-
3716(c)(9)(B) to apply to situations like Stuart's probation revocation even though the
statutory subsection was not in effect at the time he was originally sentenced. While the
language of the subsection does not mention retroactivity, a related subsection in the
same statute does discuss it. K.S.A. 2017 Supp. 22-3716(c)(12) provides: "The violation
sanctions provided in this subsection shall apply to any violation of conditions of release
or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of
when the offender was sentenced for the original crime or committed the original crime
for which sentenced." (Emphasis added.)

Our court has interpreted this statutory language to mean "the date that controls
the law that applies to the imposition of sanctions for violating probation is the law that
existed when a defendant violated probation, not the law that existed when the defendant
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committed the underlying crime . . . nor the law in effect when the probation hearing
occurred." State v. Kurtz, 51 Kan. App. 2d 50, 56, 340 P.3d 509 (2014); see also State v.
McGill, 51 Kan. App. 2d 92, 95, 340 P.3d 515 (2015) ("Our [L]egislature has now made
its intent clear—the date of the defendant's probation violation controls whether the
intermediate sanction provisions of K.S.A. 2013 Supp. 22-3716[c] apply.").

Stuart argues that the retroactivity provision, K.S.A. 2017 Supp. 22-3716(c)(12),
does not apply to K.S.A. 2017 Supp. 22-3716(c)(9)(B) because it went into effect three
years prior to K.S.A. 2017 Supp. 22-3716(c)(9)(B). L. 2014, ch. 102, § 8. He states that
the retroactivity subsection "merely expressed intent for the [L]egislature's recently
created graduated sanctioning scheme to apply to probationers who violated the terms of
their probation prior to the enactment of that scheme."

In support of his position, Stuart cites State v. Martinez, No. 116,175, 2017 WL
3947378 (Kan. App. 2017) (unpublished opinion). In Martinez, our court determined that
the 2016 amendments to K.S.A. 21-6810(d), dealing with the classification of juvenile
adjudications, did not apply retroactively despite a retroactivity clause added in 2015.
However, the retroactivity clause in Martinez was different from the retroactivity clause
in the present case. In Martinez, the retroactivity clause contained limiting language—it
said "[t]he amendments made to this section by this act are procedural in nature and shall
be construed and applied retroactively." (Emphasis added.) K.S.A. 2015 Supp. 21-
6810(e); Martinez, 2017 WL 3947378, at *11. We interpreted the language "by this act"
to refer specifically to House Bill 2053, which enacted the 2015 amendments to K.S.A.
21-6810(d). Martinez, 2017 WL 3947378, at *11-12. Our court determined that the
limiting language purposefully excluded other amendments and there was no clear
indication that the Legislature otherwise intended for amendments other than the 2016
amendments to apply retroactively.

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In the present case, there is no limiting language in the retroactivity clause.
Instead, the language of K.S.A. 2017 Supp. 22-3716(c)(12) is inclusive: "The violation
sanctions provided in this subsection shall apply to any violation of conditions of release
or assignment or a nonprison sanction occurring on and after July 1, 2013, regardless of
when the offender was sentenced for the original crime or committed the original crime
for which sentenced." (Emphasis added.) K.S.A. 2017 Supp. 22-3716(c)(12).
Importantly, this language specifically says that the provisions "in this subsection" are
included. When the Legislature added K.S.A. 2017 Supp. 22-3716(c)(9)(B) in 2017, it
was fully aware of the retroactivity language in K.S.A. 2017 Supp. 22-3716(c)(12) and it
did not alter or amend the language in any way. See In re Tax Appeal of American
Restaurant Operations, 264 Kan. 518, 524, 957 P.2d 473 (1998) ("The legislature is
presumed to know the law.").

By its plain language, the Legislature intended for the law in effect on the date of a
probation violation to control the imposition of sanctions. K.S.A. 2017 Supp. 22-
3716(c)(9)(B) was in effect on the date of Stuart's probation violation. Accordingly, the
district court did not err by applying this statutory provision.

Stuart also argues that the Ex Post Facto Clause of the United States Constitution
prohibits retroactive application of K.S.A. 2017 Supp. 22-3716(c)(9)(B). U.S. Const. art.
I, § 10, cl. 1. Stuart notes that at the time he "committed his crime of conviction, the
maximum punishment for a second-time probation violation (barring a special judicial
finding) was a 180-day prison sanction." Retroactively increasing his "exposure to
punishment for probation violations" he asserts "would constitute ex post facto law
making." We disagree.

An ex post facto law is "[a] statute that criminalizes an action and simultaneously
provides for punishment of those who took the action before it had legally become a
crime"; specifically, "a law that impermissibly applies retroactively, [especially] in a way
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that negatively affects a person's rights, as by making into a crime an action that was
legal when it was committed or increasing the punishment for past conduct." Black's Law
Dictionary 701 (10th ed. 2014); see also Fletcher v. Peck, 10 U.S. [6 Cranch] 87, 138, 3
L. Ed. 162 (1810) ("An ex post facto law is one which renders an act punishable in a
manner in which it was not punishable when it was committed.").

As discussed earlier, the law that applies to a probation violation hearing is the law
that is in effect on the date a person violates a probation. Kurtz, 51 Kan. App. 2d at 56-
57. On the date Stuart violated his probation, K.S.A. 2017 Supp. 22-3716(c)(9)(B) was in
effect. Application of K.S.A. 2017 Supp. 22-3716(c)(9)(B), therefore, is not ex post facto
because it was in effect on the date of the violation. At that time, Stuart was on notice that
if he violated the terms of his probation the district court could revoke the probation
without imposing graduated sanctions.

Finally, Stuart argues that K.S.A. 2017 Supp. 22-3716(c)(9)(B) is a substantive
statutory provision that cannot be applied retroactively. While substantive statutes
generally operate prospectively, they may apply retroactively if the Legislature clearly
intended such an application. Wells, 297 Kan. at 761. That is the case here, because the
statute contains an explicit retroactivity provision.

Because the Legislature clearly intended for K.S.A. 2017 Supp. 22-3716(c)(9)(B)
to apply to Stuart's probation revocation proceedings, and because application of the
statute does not violate the Ex Post Facto Clause, the district court's revocation of
probation and order of commitment to prison is affirmed.

ILLEGAL SENTENCE

For his second issue, Stuart contends the district court imposed an illegal sentence
by using an improperly calculated criminal history score. Stuart's PSI report showed that
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he had five prior adult person felonies, which resulted in a criminal history score of A.
Stuart argues that three of those convictions—a 1983 Arkansas burglary conviction, a
1983 Arkansas attempted burglary conviction, and a 1988 Arkansas burglary
conviction—should have been scored as nonperson felonies, which would have reduced
his criminal history score and, as a result, shortened the duration of his sentence.

Stuart did not object to his criminal history in the district court. However, this
court may correct an illegal sentence at any time. K.S.A. 2017 Supp. 22-3504(1).
Accordingly, a defendant can challenge the classification of a prior conviction for the
first time on appeal even if the defendant did not object below. State v. Dickey, 301 Kan.
1018, Syl. ¶ 4, 350 P.3d 1054 (2015).

In resolving this question we apply the following standard of review: "Whether a
prior conviction or adjudication was properly classified as a person or nonperson crime
for criminal history purposes raises a question of law subject to unlimited review." 301
Kan. 1018, Syl. ¶ 5.

Presumptive sentences for felony drug crimes are contained in a two-dimensional
sentencing grid. K.S.A. 2017 Supp. 21-6805. On one axis is the severity level of the
crime of conviction, ranging from one to five. On the other axis is the offender's criminal
history score, ranging from A to I. K.S.A. 2017 Supp. 21-6805. If an offender has three
or more adult person felony convictions, then the offender's criminal history score is A. If
an offender has two adult person felony convictions, then the offender's criminal history
score is B. K.S.A. 2017 Supp. 21-6809. Stuart's PSI report showed that he had five
person felonies. If the district court incorrectly classified three Arkansas convictions as
person felonies, then Stuart's criminal history score should be reduced to a B.

The process for classifying out-of-state convictions is described in K.S.A. 2017
Supp. 21-6811(e). An out-of-state crime is "classified as either a felony or a misdemeanor
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according to the convicting jurisdiction." K.S.A. 2017 Supp. 21-6811(e)(2). The state of
Kansas determines whether the crime should be classified as a person or nonperson
crime. The sentencing guidelines provide: "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 referred to." K.S.A. 2017 Supp. 21-
6811(e)(3). The issue presented on appeal is whether the Arkansas burglary statute, in
effect at the time of Stuart's prior convictions, is comparable to Kansas' current burglary
statute.

The Kansas Supreme Court recently clarified what it means to be a comparable
offense in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). There, our Supreme
Court held, "[t]he elements of the out-of-state crime must be identical to, or narrower
than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562.

Citing Wetrich, Stuart argues that the elements of the Arkansas burglary statute are
broader than the elements of the Kansas burglary statute and therefore are not
comparable. At the time of Stuart's prior convictions, Arkansas' burglary statute provided:
"A person commits burglary if he enters or remains unlawfully in an occupiable structure
of another person with the purpose of committing therein any offense punishable by
imprisonment." Ark. Stat. Ann. § 5-39-201 (1987); General Acts of Arkansas 1975, No.
280 § 2002. The statute defined "occupiable structure":


"(1) 'Occupiable structure' means a vehicle, building, or other structure:
(a) where any person lives or carries on a business or other
calling; or
(b) where people assemble for purposes of business, government,
education, religion, entertainment, or public transportation; or
(c) which is customarily used for overnight accommodation of
persons; whether or not a person is actually present. Each unit of an
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occupiable structure divided into separately occupied units is itself an
occupiable structure." Ark. Stat. Ann. § 5-39-101 (1987); General Acts
of Arkansas 1975, No. 280 § 2001.

Stuart committed his current offense in May 2015. At that time, Kansas' burglary
statute provided:

"(a) Burglary is, without authority, entering into or remaining within any:
(1) Dwelling, with intent to commit a felony, theft or sexually
motivated crime therein;
(2) building, manufactured home, mobile home, tent or other
structure which is not a dwelling with intent to commit a felony, theft or
sexually motivated crime therein; or
(3) vehicle, aircraft, watercraft, railroad car or other means of
conveyance of persons or property, with intent to commit a felony, theft
or sexually motivated crime therein." K.S.A. 2014 Supp. 21-5807(a).

On the date that Stuart committed his current offense, Kansas law defined
dwelling: "'Dwelling' means a building or portion thereof, a tent, a vehicle or other
enclosed space which is used or intended for use as a human habitation, home or
residence." K.S.A. 2014 Supp. 21-5111(k). Burglary of a dwelling was defined in K.S.A.
2014 Supp. 21-5807(a)(1) as a person felony. K.S.A. 2014 Supp. 21-5807(c)(1)(A). Other
types of burglary were nonperson felonies. K.S.A. 2014 Supp. 21-5807(c)(1)(B)-(C).

As a preliminary matter, the State argues that this sentencing issue is not properly
before our court because Stuart failed to designate a sufficient record. The State asserts
that Arkansas' burglary statute is divisible, and Stuart had the burden of proving under
which subsection he was convicted. Without this information, the State claims our court
must accept the district court's sentence as proper.

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A divisible statute is one which "list[s] elements in the alternative, and thereby
define[s] multiple crimes." Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243, 2249,
195 L. Ed. 2d 604 (2016). A statute which merely "enumerates various factual means of
committing a single element" is not a divisible statute. 136 S. Ct. at 2249.

At the time of Stuart's prior crimes was the Arkansas burglary statute a divisible
statute? We are persuaded that by providing three different definitions of "occupiable
structure," the Arkansas Legislature was creating alternate means of committing a single
crime of burglary. The Kansas Supreme Court examined a similar statute in Wetrich.
There, a Missouri statute defined burglary in the second degree in a manner similar to the
Arkansas statute: a person committed the offense "'when he knowingly enters unlawfully
or knowingly remains unlawfully in a building or inhabitable structure for the purpose of
committing a crime therein.'" Wetrich, 307 Kan. at 562 (quoting Mo. Rev. Stat. § 269.170
[1986]). Like Arkansas' statute, Missouri's statute had three different definitions of
"inhabitable structure." 307 Kan. at 563 (citing Mo. Rev. Stat. § 569.010 [1986]). Our
Supreme Court found that the definition merely created alternative means of committing
the crime. 307 Kan. at 564. We adopt the rationale of our Supreme Court and conclude
the Arkansas burglary statute was not divisible.

Alternatively, the State argues that the Arkansas burglary convictions are
comparable to the Kansas crime of burglary of a dwelling. In particular, the State argues
that the "identical or narrower" rule of Wetrich should not be applied retroactively
because it constitutes a change in the law. The State cites K.S.A. 2017 Supp. 22-3504(3),
which provides that "[a] sentence is not an 'illegal sentence' because of a change in the
law that occurs after the sentence is pronounced."

Our court recently rejected the State's argument and held that Wetrich did not
change the law. State v. Smith, 56 Kan. App. 2d 343, 353, 2018 WL 4374275 (2018)
("[T]he Kansas Supreme Court did not change the law in Wetrich. Instead, the court's
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decision is better characterized as reinterpreting the meaning of the term 'comparable
offenses' within the [Kansas Sentencing Guidelines Act].").

The State does not attempt to argue that Arkansas' burglary statute is identical to
or narrower than the relevant Kansas burglary statute. As Stuart correctly notes, there are
two primary reasons the Arkansas statute is broader than and, thus, not comparable to
Kansas' statute. First, Arkansas' definition of "occupiable structure" is broader than
Kansas' definition of "dwelling." A Kansas dwelling must be "intended for use as a
human habitation, home or residence." K.S.A. 2014 Supp. 21-5111(k). There is no such
limitation in Arkansas' definition of "occupiable structure." On the contrary, an
"occupiable structure" can include places that are not intended for such uses, like
businesses, houses of worship, or public transportation.

Second, Arkansas' statute is broader because the offender must have the intent to
commit "any offense punishable by imprisonment." Ark. Stat. Ann. § 5-39-201 (1987).
The relevant Kansas statute is more limited because the offender must have the intent to
commit a felony, theft, or sexually motivated crime. K.S.A. 2014 Supp. 21-5807(a)(1). In
the 1980s, for example, Arkansas authorized imprisonment for misdemeanor offenses.
Ark. Stat. Ann. §§ 5-4-401(b) and 5-4-402(b). Assuming the other elements were met, a
person who had the intent to commit a misdemeanor (other than theft or a sexually
motivated crime) could be convicted of burglary in Arkansas but not in Kansas.

We conclude that the Arkansas burglary statute upon which Stuart was convicted
is not identical to or narrower than the Kansas burglary statute. As a consequence,
Stuart's prior Arkansas burglary convictions are not comparable to any Kansas offense.
"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 crime shall be classified as a
nonperson crime." K.S.A. 2017 Supp. 21-6811(e)(3). The three prior Arkansas burglary
convictions were erroneously scored as person felonies at the time of Stuart's sentencing.
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Accordingly, Stuart's sentence is vacated and the case is remanded for resentencing with
directions to consider his three prior Arkansas burglary convictions as nonperson felonies
in calculating his criminal history score.

Affirmed in part, sentence vacated, and case remanded with directions.