State v. Turner

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NOT DESIGNATED FOR PUBLICATION

Nos. 119,211
119,215
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEANGELO DWAYNE TURNER,
Appellant.



MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed May 24, 2019.
Affirmed in part, sentence vacated, remanded with directions.


Kai Tate Mann, of the Kansas Appellate Defender Office, for appellant.



Anna M. Jumpponen, assistant county attorney, Ellen Mitchell, county attorney, and Derek

Schmidt, attorney general, for appellee.



Before ARNOLD-BURGER, C.J., HILL, J., and STUTZMAN, S.J.



PER CURIAM: DeAngelo Dwayne Turner appeals his sentences in two cases
consolidated on appeal. In the first case, we remand because the court used an incorrect
criminal history score. In the second case, we find no error and affirm.


In the first case, Turner pled guilty to one count of possession with the intent to
distribute marijuana, a severity level three drug felony. In the second case, he pled guilty
to an aggravated violation of the Kansas Offender Registration Act, a severity level three
felony. In the second case, the amended complaint alleged that Turner was required to
criminal history purposes under K.S.A. 2016 Supp. 21-6810 requires interpretation of

statutes, which is a question of law over which we have unlimited review. State v.
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register due to two federal drug convictions, and that he failed to register his residence.
The KORA violation was "aggravated" because it continued for more than 180
consecutive days—from April 1, 2016, to September 27, 2016. See K.S.A. 2016 Supp.
22-4903(b). We examine the drug case first.



In the marijuana possession case, the district court found Turner's criminal history
to be C based on the two federal drug convictions scored as nonperson felonies and the
aggravated KORA violation scored as a person felony. On appeal, both Turner and the
State agree that the aggravated KORA violation should have been scored as a nonperson
felony. The KORA violation was not complete until after the law had changed in July
2016. L. 2016, ch. 97 § 4. That change required KORA violations to be scored as person
or nonperson based on the score of the crime that triggered the registration requirement
(here a nonperson felony). See K.S.A. 2016 Supp. 22-4903(c)(2); K.S.A. 2016 Supp. 21-
5107(f). We vacate Turner's sentence and remand for resentencing. We move now to the

KORA violation case.



In that case, the district court found Turner's criminal history to be F based on his
drug conviction in the first case and one of his federal drug convictions. Both are scored
as nonperson felonies. The district court did not count the second federal drug conviction
in his criminal history, but rather considered it an element of the KORA violation.


To us, Turner repeats the argument he made to the district court that the court
should have excluded both federal drug convictions from his criminal history score
because both were elements of the KORA violation. The State disagrees, citing prior
decisions by this court.


A brief review of the law is helpful here. The classification of an offense for
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Luarks, 302 Kan. 972, 976, 360 P.3d 418 (2015). All prior convictions must be counted in
determining a defendant's criminal history score 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. 2016 Supp. 21-6810(d)(9); State v. Kelly, 298 Kan.
965, 976, 318 P.3d 987 (2014). In other words, the general rule is that all prior
convictions are counted for criminal history purposes, unless the conviction must be
excluded under one of the listed exceptions. The conviction that creates the need for
registration under KORA is necessarily an element of the offense of failure to register
and cannot be counted in determining the offender's criminal history score. State v.
Pottoroff, 32 Kan. App. 2d 1161, Syl. ¶ 4, 96 P.3d 280 (2004).


But when a defendant has several prior convictions for crimes that require
registration, only one of the prior convictions is necessarily an element of the offense of
failure to register; the remaining convictions can be counted in computing the offender's
criminal history score. In State v. Deist, 44 Kan. App. 2d 655, 655-56, 239 P.3d 896
(2010), Deist pled no contest to one count of failure to register as a sex offender. He had
two prior convictions for aggravated indecent liberties with a child for which he was
required to register as a sex offender. The district court counted one of the prior
convictions as an element of the current offense and the other toward his criminal history.
Like here, Deist argued on appeal that because both convictions required him to register
as a sex offender, both were elements of the current offense and should have been
excluded from his criminal history. This court disagreed. It reasoned that under the plain
language of KORA, only one prior conviction of a sexually violent crime was necessary
to categorize the defendant as an "offender" and thereby creates a duty to register.
Accordingly, only one of Deist's prior convictions was an element of failing to register,
and his other conviction was properly counted in calculating his criminal history score.


While Turner argues that Deist was wrongly decided, other panels of our court
have reached the same conclusion as the Deist panel. See State v. Henderson, No.
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114,477, 2016 WL 4498853, at *3 (Kan. App. 2016); State v. Haskell, No. 107,592, 2012

WL 5519220, at *2-3 (Kan. App. 2012).



Another panel of our court used the similar reasoning in State v. Williams, 47 Kan.
App. 2d 102, 102-03, 272 P.3d 1282 (2012), holding that where "three or more" felony-
theft convictions were needed to trigger an enhancement of the defendant's sentence to
presumptive imprisonment, the defendant's fourth prior felony-theft conviction could be
counted for criminal history purposes. The court commented that Kansas' sentencing
statutes "show an overall purpose to count all convictions when determining criminal-
history scores, subject to the exception that convictions used in some other way—such as
by enhancing the sentence—are 'used up' and may not be counted again." 47 Kan. App.
2d at 108.



We agree with the reasoning found in all of those cases. Only one of Turner's

prior federal drug convictions was needed to trigger the offender registration requirement
under K.S.A. 2016 Supp. 22-4903. Therefore, the second federal conviction was properly
counted in his criminal history.


Turner argues both convictions are material in determining the scope of his
registration requirements because with only one prior federal drug conviction he would
have been required to register for 15 years under K.S.A. 2016 Supp. 22-4906(a), but with
two prior federal drug convictions, he was required to register for life under K.S.A. 2016
Supp. 22-4906(c). This fact does distinguish Turner's case from Deist. But both of
Turner's federal drug convictions occurred in 2009. Less than 15 years have passed. For
now, either one of the convictions independently fulfill the elemental requirements of
Turner's crime of failure to register. That means only one federal drug conviction was
necessarily used up and may not be counted again.
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Turner also argues that both federal drug convictions must be elements because
they were both listed in the charging document. Charging documents often allege more
than one way in which a crime was committed. But while either federal drug conviction
could be an element, the point of Deist and subsequent cases is that only those prior
convictions necessarily used up in some other way are excluded from the criminal history
calculation under the Kansas sentencing scheme.


We vacate the sentence in Turner's drug possession case and remand for
resentencing with a correct criminal history. We affirm Turner's sentence in his KORA
violation case.