State v. Travis

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NOT DESIGNATED FOR PUBLICATION

No. 117,617

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIAM DANIEL TRAVIS JR.,
Appellant.


MEMORANDUM OPINION


Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed July 27,
2018. Conviction affirmed, sentence vacated, and remanded with directions.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: In this appeal, William Daniel Travis contends the district court
should not have sent him to prison to serve his sentence but should have imposed an
intermediate sanction instead. He also argues that his sentence is illegal because the court
incorrectly scored his 1988 Kentucky robbery conviction as a person felony. Travis is
correct on both points. Because the court failed to set forth with particularity any reasons
why Travis' welfare would not be served by imposing an intermediate sanction, we
vacate Travis' sentence and remand for a new dispositional hearing. His criminal history
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score is incorrect because of the improper scoring of the Kentucky robbery conviction.
We order the court to impose a new sentence using a corrected criminal history score.

Travis is no stranger to Kansas criminal courts.

Travis violated the reporting law. Because of a conviction for selling a controlled
substance, the law required Travis to register as a drug offender from 2008 to 2025. He
had to renew this registration in October 2015 but failed to do so. And Travis had been
evicted from his residence and failed to report this change of address.

These reporting failures came to the State's attention and the prosecutor charged
Travis with failure to register under K.S.A. 2015 Supp. 22-4905. He pleaded guilty. The
State, however, agreed to request a dispositional departure at sentencing to allow Travis
to enter inpatient treatment with the Therapeutic Community. Without such an
agreement, Travis was headed to prison. First, because, based on his crime and on his
agreed criminal history score, his guideline sentence was a presumptive prison term.
Second, since Travis committed this crime while on felony probation, any sentence he
would receive would also be a presumptive prison term.

The court followed the State's recommendation and granted a dispositional
departure. It sentenced him to 36 months in prison and placed him on probation for 24
months. This departure allowed Travis to attempt rehabilitation. The sentencing court
told him that the Therapeutic Community program was good and if Travis could not
handle the full program he would have to complete his prison sentence. Completing the
Therapeutic Community program was then added as a condition of Travis' probation. The
court ordered this sentence to be consecutive to a sentence arising from his conviction in
Anderson County, Kansas.

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This prior conviction in Anderson County was significant. The court made it clear
that the Therapeutic Community would not take Travis if he had a detainer in another
case. He needed to serve his time for the Anderson County case before he could begin his
probation for the failure to report conviction. The court warned Travis, "[i]f you do get
out in Anderson County, you know, if they don't bring you back here, you have to beat
feet to get back here and get set up for your Therapeutic Community." Travis promised
that when he was released from the sentence in Anderson County he would return to
begin his treatment.

Events did not follow that path. When Travis was released from the Anderson
County sentence he did not return to begin his treatment. The State moved to revoke
Travis' probation.

At the hearing to revoke his probation, Travis stipulated to violating his probation
by being released from Anderson County custody and not reporting to his treatment
service. He told the court that he was a methamphetamine addict and asked the court to
send him directly to rehab. Travis also suggested that he would not oppose any "shock
time" the court would impose. The State asked the court to impose the prison sentence by
arguing that Travis' welfare would not be served by imposing any intermediate jail
sanction.

The district court ordered Travis to serve his prison sentence. The court made a
vague, general finding about graduated sanctions:

"Well, so, Mr. Travis, here I am. I am looking for reasons to help you here, but I
don't know that I have any, all right? You have not responded to anything everybody has
done. I know you're an addict, but I cannot reward the kind of behavior that you have
exhibited here and all the breaks that you have been given. So I am inclined to go ahead
and have you serve your sentence. You are a C. You've been through this before. It is not
like you're a babe in the woods here. It was a presumptive prison case. You committed
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the crime while under felony supervision. So you got a departure. You got a trip to the
[Therapeutic Community]. A probation with a trip to the [Therapeutic Community]. All
of those things, and you blew them up. I know maybe your addiction was part of the
reason you did that but I can't in good conscience ignore all of that.
"I'm going to find that there—that the necessary criteria has been met not to give
you a graduated sanction and that I'm going to order that you go serve your sentence."

The law requires the court to at least consider an intermediate sanction.

Travis stipulated to the probation violation for failing to report to Therapeutic
Community following his release from Anderson County. With that, the only question
remaining is whether the revocation of probation and imposition of the underlying
sentence was appropriate. This is a question of law over which this court exercises
unlimited review. See State v. Sandberg, 290 Kan. 980, 984, 235 P.3d 476 (2010).

While it is true that the decision to revoke probation based on a violation rests
within the discretion of the district court, it is also true that discretion is limited by law.
When imposing a sanction for a probation revocation, the district court must impose a
series of graduated sanctions before imposing the underlying sanction. K.S.A. 2016 Supp.
22-3716(c)(1)(B)-(E). In some situations, a defendant's actions can permit the district
court to impose the underlying sanctions without imposing the graduated sanctions. The
underlying prison sentence may be imposed if the defendant absconds from probation,
commits a new crime, or the district court "finds and sets forth with particularity the
reasons for finding that the safety of members of the public will be jeopardized or that the
welfare of the offender will not be served by such sanction." K.S.A. 2016 Supp. 22-
3716(c)(8)-(9).

Several panels of this court have interpreted the meaning of the phrase, "sets forth
with particularity the reasons." To set forth with particularity means that the reasoning
must be "'distinct rather than general, with exactitude of detail, especially in description
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or stated with attention to or concern with details.' [Citation omitted.]" State v.
McFeeters, 52 Kan. App. 2d 45, 48, 362 P.3d 603 (2015). When the statute requires
particular findings, implicit findings cannot satisfy the statutory burden. State v. Miller,
32 Kan. App. 2d 1099, 1102-03, 95 P.3d 127 (2004). When imposing the underlying
sentence, the district court "must explicitly address how the public's safety would be
jeopardized or how the offender's welfare would not be served by imposition of the
intermediate sanctions." McFeeters, 52 Kan. App. 2d at 49.

In turn, at the revocation hearing, the district court also considered:
 Travis' addiction;
 Travis' failure to report to the Therapeutic Community Program;
 Travis' criminal history score; and
 Travis was given a dispositional departure.

We note here, at most, an implicit finding that Travis' welfare would not be served
by the imposition of an intermediate sanction. Certainly, that is what the State argued at
the revocation hearing. At sentencing, the district court had explained to Travis that if he
failed the Therapeutic Community program he would have to serve his prison sentence.
Travis' failure to report to his Therapeutic Community program after being warned that
failure of that program would lead to imposing the underlying sentence implies that
Travis' welfare would not be served by imposing an intermediate sanction. But the
district court made no particular finding connecting Travis' failure to report with how the
imposition of an intermediate sanction would not serve his welfare. See McFeeters, 52
Kan. App. 2d at 48-49.

Because this finding is not particular enough to invoke the offender's welfare
exception in K.S.A. 2016 Supp. 22-3716(c)(9), the district court made an error of law and
is thus an abuse of its discretion. See State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587
(2015). Travis' sentence is vacated and the case is remanded to the district court for a new
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dispositional hearing. On remand, the district court can either impose an intermediate
sanction or set forth with particularity the reasons that Travis' welfare would not be
served by imposing an intermediate sanction. See, e.g., State v. Jackson, No. 113,354,
2016 WL 2609638 at *6 (Kan. App. 2016) (unpublished opinion).

Based on Supreme Court precedent, Travis' criminal history score is incorrect.

Travis is raising his claim of miscalculation of his criminal history score for the
first time on appeal. The State concedes that he may do so based on the ruling in State v.
Dickey, 301 Kan. 1018, 1027, 350 P.3d 1054 (2015).

This is a question of law over which this court has unlimited review. State v. Lee,
304 Kan. 416, 417, 372 P.3d 415 (2016). Classification of prior offenses is set out in our
Sentencing Guidelines Act, K.S.A. 21-6801 et seq. The calculation of an offender's
criminal history score is controlled by K.S.A. 2015 Supp. 21-6811.

The statute provides that "Out-of-state convictions and juvenile adjudications shall
be used in classifying the offender's criminal history." K.S.A. 2015 Supp. 21-6811(e)(1).
When classifying criminal history, a prior out-of-state conviction is classified as a felony
or misdemeanor based on the classification of the convicting jurisdiction. K.S.A. 2015
Supp. 21-6811(e)(2). When the out-of-state conviction is a felony, it is counted as a
felony in Kansas. K.S.A. 2015 Supp. 21-6811(e)(2)(A). Travis' out-of-state 1988
conviction was for a Kentucky robbery. Kentucky classified the offense as a felony, so
the offense will be counted as a felony in Kansas. But the calculation does not stop there.

Next, the sentencing court must determine whether the felony is a person or
nonperson offense. Usually this means comparable offenses will be treated comparably:

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"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 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)(3).

A recent ruling by our Supreme Court has clarified the meaning of this subsection
in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018). Before Wetrich, panels of this
court had used different standards for analyzing these types of cases. Some panels used a
closest approximation test in which the offenses could be considered comparable offenses
if the out-of-state statute and the Kansas statute prohibited similar conduct. See, e.g.,
State v. Moore, 52 Kan. App. 2d 799, 813-16, 377 P.3d 1162 (2016), reversed 307 Kan.
599 (2018). Other panels held that for the out-of-state offense to be used, the out-of-state
statute must be identical to or narrower than the Kansas statute. See, e.g. State v.
Gonzalez, No. 107,798, 2016 WL 299042, at *7 (Kan. App. 2016) (unpublished opinion).
The Kansas Supreme Court in Wetrich reconciled this difference in caselaw.

Our Supreme Court has directed that for an offense to be considered a
"comparable offense" under the meaning of the statute, the elements of the offense in the
convicting jurisdiction must be identical to or narrower than the elements of the Kansas
offense. Wetrich, 307 Kan. Syl. ¶ 3. Applying that ruling here, we have a simple question
to answer: Are the elements of second degree-robbery in Kentucky—in effect in 1988—
identical to or narrower than the elements of the Kansas robbery statute in effect in 2015?

Statutory history shows that Kentucky enacted its robbery statute in 1974 and has
not amended the statute since that time. Second-degree robbery in Kentucky is defined
as: "A person is guilty of robbery in the second degree when, in the course of
committing theft, he uses or threatens the immediate use of physical force upon another
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person with intent to accomplish the theft." Williams v. Commonwealth, 721 S.W.2d 710,
711 (Ky. 1986); Ky. Rev. Stat. Ann. § 515.030.

The elements of robbery in Kansas in 2015 are set out in K.S.A. 2015 Supp. 21-
5420. That statute defines robbery as "knowingly taking property from the person or
presence of another by force or by threat of bodily harm to any person."

The chart below shows the elements of both robbery statutes:

Elements of Kentucky Second-Degree
Robbery
Elements of Kansas Robbery
 Uses or threatens the immediate use of
o Physical force
o Upon another person
 In the course of committing a theft
 Intending to accomplish the theft
 Knowingly takes property
 From a person or in the presence of
another
 By force or threat of bodily harm to
another


Travis argues that the Kentucky statute is broader than the Kansas statute because
Kansas requires a threat of bodily harm when the Kentucky statute requires only a threat
of force. He points out that all threats of bodily harm involve threats of force, but not all
threats of force involve threats of bodily harm.

This argument is based on Kansas caselaw that distinguishes bodily harm from
great bodily harm. See State v. Bryant, 22 Kan. App. 2d 732, 922 P.2d 118 (1996). For
aggravated robbery, bodily harm does not include trivial injuries and minor marks that
would occur from any simple robbery. 22 Kan. App. 2d at 735. Travis argues that for
there to be a threat of bodily harm for simple robbery, the threat must be more than a
threat of physical force that is required by the Kentucky statute. The State does not
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specifically address this argument. Instead, it argues the two robbery offenses are
comparable under the prior standard overruled by Wetrich.

We follow a different path than those suggested by either Travis or the State. It
seems to us that based on the elements, the Kentucky law is broader. First, under the
Kentucky statute, violence after a taking has occurred can, in some factual situations, be
enough to establish a robbery. In Kansas, the violence must proceed or be
contemporaneous with a taking to constitute a robbery. Second, Kansas law requires that
the taking be from a person or from within a person's presence. Kentucky has no personal
presence requirement. Based on these elements, the Kentucky statute is broader than the
Kansas statute and cannot be used as a comparable offense under K.S.A. 2015 Supp. 21-
6811(e)(3). See Wetrich, 307 Kan. at 558-61.

Both differences rest on two phrases within the Kentucky statute—"in the course
of committing theft" and "with intent to accomplish the theft." Ky. Rev. Stat. Ann. §
515.030. Under the Kentucky statute, a person can take property without the use of force
but be convicted of robbery based on using force to accomplish an escape. Under the
Kentucky statute:

"if a defendant commits or attempts to commit a theft (obtains property of another with
intent to deprive the owner, KRS 513.010 et seq.) without using or threatening to use
force against another, and does so for the first time only in the escape phase, while still
intending to accomplish the theft, the elements of robbery are met." Hobson v.
Commonwealth, 306 S. W. 3d 478, 482 (Ky. 2010).

A similar interpretation of the Kentucky statute was valid caselaw when Travis
was convicted of second-degree robbery. See, e.g. Williams v. Commonwealth, 639 S.W.
2d 786, 788 (Ky. App. 1982) overruled by Hobson, 306 S.W. 3d at 482.

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In contrast, cases interpreting our robbery statute specifically prohibit finding a
robbery occurred when force is only used to accomplish an escape. It is well settled in
Kansas that the violence must precede or be contemporaneous with the taking of the
property:

"to constitute the crime of robbery . . . it is necessary that the violence to the owner must
either precede or be contemporaneous with the taking of the property and robbery is not
committed where the thief has gained peaceable possession of the property and uses no
violence except to resist arrest or to effect his escape." State v. Aldershof, 220 Kan. 798,
803, 556 P.2d 371 (1976).

Thus, since the Kentucky statute permits a robbery to occur when violence is used
for the first time during an escape, and Kansas law prohibits a finding that robbery occurs
when violence is only used in the escape, we hold the elements of the Kentucky statute
are broader than the Kansas statute. In other words, more actions are criminalized by the
Kentucky statute. This difference alone is fatal to the State's position that Travis' criminal
history score is correctly calculated.

Additionally, the Kentucky statute is broader than the Kansas statute because it
does not require that the taking of the property to be from a person or from the presence
of a person—an element of robbery in Kansas. See State v. Brown, 306 Kan. 1145, 1158-
59, 401 P.3d 611 (2017). In Kentucky, the phrase "in the course of committing a theft"
includes takings that are not from a person or in a person's presence. Hobson is a good
example of the differences between these two statutes.

In Hobson, the defendant broke into another person's vehicle and stole a driving
license, several credit cards, and various other unidentified items. The defendant
eventually traveled to Walmart with the stolen cards and placed items in his cart. When
the defendant tried to check out, the cashier believed the cards had been stolen and
delayed the purchase. A police officer intervened in the situation. While the officer was
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contacting the owner of the stolen credit cards, the defendant fled. He had left the stolen
card and merchandise at the checkout counter. The officer eventually caught the
defendant and a scuffle ensued. 306 S.W. 3d at 478-79.

The Kentucky Supreme Court was asked to determine if these facts constituted a
robbery. The court determined that no robbery occurred because the scuffle happened
after the defendant had abandoned the intent to steal the items. 306 S.W. 3d at 482-83. In
Kansas, this could not be considered a robbery because the element that the taking be
from a person or presence of another cannot be met when the only taking was the items
from the unoccupied vehicle and merchandise from Walmart. Because the Kentucky
statute allows robberies to occur without a taking from a person or the presence of
another, the elements of the Kentucky statute are broader than the elements of the Kansas
statute.

The Kentucky statute is not identical to or narrower than the Kansas statute; thus,
it does not constitute a "comparable offense" under the meaning of K.S.A. 2015 Supp.
21-6811(e)(3). Because it is not a comparable offense, Travis' Kentucky robbery
conviction cannot be considered a person felony for calculation of criminal history. Since
this was his only person felony conviction, if it was properly classified as a nonperson
felony, he has six nonperson felonies. Because there are only nonperson felonies, the
district court must resentence Travis according to his proper criminal history score.

We vacate Travis' sentence and remand with directions for the court to hold a new
dispositional hearing and impose a new sentence. The district court is to resentence
Travis after scoring his 1988 Kentucky robbery conviction as a nonperson felony. At the
new dispositional hearing, the district court can either impose an intermediate sanction or
set forth with particularity the reasons that Travis' welfare would not be served by
imposing an intermediate sanction.

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Conviction affirmed, sentence vacated, and remanded with directions.