State v. Santos ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,466
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MARK ALLEN SANTOS,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; MICHAEL J. HOELSCHER and RODGER L. WOODS, judges.
Opinion filed September 2, 2022. Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before GARDNER, P.J., MALONE and CLINE, JJ.
PER CURIAM: Mark Allen Santos appeals the sentence he received for his
conviction of possession of methamphetamine. He claims for the first time on appeal that
his presentence investigation (PSI) report might not accurately reflect his criminal history
and so he may have received an illegal sentence. But at sentencing Santos personally
agreed with his criminal history score in the PSI report and did not challenge the
accuracy of any of his prior convictions listed in the report. Santos' sentencing challenge
is foreclosed by the Kansas Supreme Court's recent decision in State v. Corby, 314 Kan.
794, 797-98, 502 P.3d 111 (2022), and we affirm the district court's judgment.
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FACTS
In November 2019, Santos pled guilty to one count of possession of
methamphetamine, and the district court ordered a PSI report to be prepared for
sentencing. The PSI report listed 63 prior convictions including a 2001 Kansas conviction
for fleeing or attempting to elude an officer in violation of K.S.A. 8-1568. This crime
constitutes a misdemeanor or a person felony depending on which subsection of K.S.A.
8-1568 the offender violates. The PSI report failed to state under which subsection of
K.S.A. 8-1568 Santos' conviction fell, but it scored the conviction as a person felony.
This resulted in a finding of a criminal history score of C.
Santos forfeited his bond after the plea hearing, and the court did not hold the
sentencing hearing until November 9, 2020. At sentencing, Santos' counsel stated there
was no objection to either the PSI report or the resulting criminal history score. Then, the
judge personally addressed Santos about the accuracy of his criminal history score:
"THE COURT: Mr. Santos, did you have a chance to review each and every
entry on your Presentence Investigation?
"MR. SANTOS: Yes, sir.
"THE COURT: Do you believe that every entry on your Presentence
Investigation form is correct?
"MR. SANTOS: Yes, sir.
"THE COURT: And do you believe your criminal history score is appropriately
set at C as in cat?
"MR. SANTOS: Yes, sir."
Based on the criminal history score, the district court sentenced Santos to 32
months' imprisonment but granted probation for 18 months conditioned on drug
treatment. Santos did not initially appeal his sentence.
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Less than a year later, the State issued a warrant for Santos' arrest, following a
positive drug test and Santos' discharge from his drug treatment housing. At a hearing on
September 13, 2021, Santos stipulated to violating his probation. The district court
extended Santos' probation for another 18 months and ordered him to attend an inpatient
drug treatment facility. Santos filed a timely notice of appeal, and the district court
appointed counsel to represent him on appeal. The docketing statement filed with this
court asserts that the "court erred in extending [Santos'] probation for 18 months."
ANALYSIS
Although Santos' appeal follows the district court's decision to extend his
probation for 18 months, his brief does not challenge this decision. An issue not briefed is
waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). And
Santos is not bound to argue the "proposed" issue in his docketing statement.
Instead, Santos argues for the first time on appeal that the sentence he received on
November 9, 2020, may be illegal. More specifically, Santos asserts that the PSI report
was deficient because it did not specify under which subsection of K.S.A. 8-1568 that his
2001 conviction for fleeing or attempting to elude an officer was charged. Noting that the
statute has both misdemeanor and felony violations for the same offense, Santos argues
that remand is necessary to determine the accuracy of his PSI report and, thereby, the
legality of his sentence. The State does not dispute that Santos can challenge the legality
of his sentence for the first time on appeal. See K.S.A. 2021 Supp. 22-3504(a) ("The
court may correct an illegal sentence at any time while the defendant is serving such
sentence."); State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016).
An illegal sentence is one that is "[i]mposed by a court without jurisdiction; that
does not conform to the applicable statutory provision, either in character or punishment;
or that is ambiguous with respect to the time and manner in which it is to be served at the
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time it is pronounced." K.S.A. 2021 Supp. 22-3504(c)(1). Our Supreme Court has stated
that "where there has been a misclassification of a prior conviction, the resulting sentence
is illegal and can be corrected at any time pursuant to K.S.A. 22-3504." Dickey, 305 Kan.
at 220. Our Supreme Court has also stated our standard of review. "Typically we describe
the classification issue as a question of law, but it is a bit more nuanced [here] because it
is the State's burden to prove by a preponderance of the evidence that the defendant
committed a crime for which classification is appropriate." State v. Obregon, 309 Kan.
1267, 1275, 444 P.3d 331 (2019). When reviewing the classification of a prior
conviction, an appellate court determines whether substantial competent evidence
supports the district court's finding that the State met this burden. 309 Kan. at 1275.
Santos asserts that we should apply this court's reasoning in State v. Chenault, No.
121,998, 2020 WL 6935616, at *3-4 (Kan. App. 2020) (unpublished opinion), where
another panel of this court found that a PSI report's failure to include the subsection of a
statute which contained both felony and misdemeanor provisions was insufficient to
prove the defendant's criminal history. In Chenault, the defendant's PSI report listed prior
convictions of interference with a law enforcement officer and theft, scored as felonies.
This court noted that these convictions could either be felonies or misdemeanors
depending on which subsection of the statutes the defendant was convicted. 2020 WL
6935616, at *3. Without this information, this court determined there was insufficient
evidence to establish that the convictions were properly classified, and remand was
necessary for the State to satisfy its burden of proof. 2020 WL 6935616, at *4.
But Santos acknowledges that in State v. Roberts, 314 Kan. 316, 320, 498 P.3d
725 (2021), the defendant argued the district court had erred in using three misdemeanor
convictions to enhance his criminal history score because the State had not offered proof
that the convictions had been counseled or that the defendant had waived counsel. The
defendant had not challenged his criminal history score at sentencing. In rejecting the
defendant's argument, our Supreme Court held that
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"a defendant who fails to object under K.S.A. 2020 Supp. 21-6814(c) at sentencing to the
constitutional validity of a prior conviction used to enhance a current sentence, based on
a claim of the absence of counsel without a valid waiver, has the burden to show the prior
conviction is invalid, regardless of whether the defendant's constitutional challenge to the
allegedly uncounseled conviction in criminal history is brought on direct appeal of the
current sentence or in a proceeding collaterally attacking that sentence." 314 Kan. at 334-
35.
Then, after Santos filed his appellate brief, our Supreme Court decided Corby, a
case that is factually identical to Santos' case. In Corby, the defendant's PSI report failed
to state under which subsection of K.S.A. 8-1568 the defendant's two prior fleeing or
attempting to elude convictions fell. Still, the PSI report scored both convictions as
person felonies. At sentencing, the defendant personally admitted that his criminal history
was correct in response to a question from the district court. After violating probation and
being ordered to serve his underlying sentence, the defendant appealed, arguing in part
that his original sentence was illegal because the State provided insufficient proof that his
prior convictions were felonies.
Following the reasoning in Roberts, our Supreme Court rejected the defendant's
argument and found that a defendant who fails to object to a PSI report at sentencing has
the burden to prove a prior conviction is invalid for the first time on appeal. 314 Kan. at
797. More specifically, the court held that "[a] defendant's admission to prior in-state
criminal history as set forth in a [PSI] report relieves the State from having to produce
additional evidence to support a criminal history score." 314 Kan. 794, Syl.
Like the defendant in Corby, Santos personally admitted that his criminal history
was correct during sentencing. And like the defendant in Corby, Santos is not claiming
that his sentence is illegal but is claiming it might be illegal because the PSI report did
not list the statutory subsection under which his prior conviction fell. Santos only
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speculates for the first time on appeal that his PSI report might be wrong resulting in an
illegal sentence, and this speculation cannot support a remand under Corby.
Our Supreme Court's more recent opinion in Corby trumps this court's
unpublished opinion in Chenault. The Kansas Court of Appeals is duty-bound to follow
Kansas Supreme Court precedent unless there is some indication that the Supreme Court
is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390
P.3d 903 (2017). We have no indication our Supreme Court is departing from its recent
decision in Corby. Because Santos personally admitted to the accuracy of his PSI report
at his sentencing hearing, we find that the State has met its burden to properly classify
Santos' 2001 Kansas conviction for fleeing or attempting to elude an officer as a person
felony. As a result, Santos is entitled to no relief on this claim made for the first time on
appeal. But we observe that Santos may still move in the district court to correct his
alleged illegal sentence, and in such a motion he will have the burden of proving that his
prior conviction for fleeing or attempting to elude an officer was improperly classified as
a person felony, resulting in a different criminal history score and an illegal sentence.
Affirmed.
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