State v. Aschenbrenner ( 2021 )

NOT DESIGNATED FOR PUBLICATION
Nos. 123,386
123,387
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RATHE ASCHENBRENNER,
Appellant.
MEMORANDUM OPINION
Appeal from Thomas District Court; KEVIN BERENS, judge. Opinion filed October 1, 2021.
Remanded with directions.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before WARNER, P.J., MALONE and BUSER, JJ.
PER CURIAM: Rathe Aschenbrenner appeals the district court's decision revoking
his probation and ordering him to serve his original sentences in two separate cases.
Aschenbrenner does not challenge the revocation of his probation but argues his original
sentences, imposed in January 2020, are illegal because his criminal history score
included a prior juvenile adjudication of criminal threat. Aschenbrenner asserts that
because the Kansas Supreme Court held the reckless version of the offense
unconstitutional in State v. Boettger, 310 Kan. 800, 822, 450 P.3d 805 (2019), cert.
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denied 140 S. Ct. 1956 (2020), his cases must be remanded to determine which version of
criminal threat he committed and whether his criminal history score is correct.
The State recognizes that remand is generally the remedy in this situation, but it
argues that Aschenbrenner's illegal sentence claim is not preserved because he did not
object to his criminal history score in his presentence investigation (PSI) report or
otherwise challenge any of his prior adjudications or convictions at sentencing. For the
reasons stated in this opinion, we find that Aschenbrenner can properly raise his illegal
sentence claim, and we remand for further proceedings.
FACTS
The facts are straightforward and undisputed. Aschenbrenner pled guilty to one
count of burglary in both 2019-CR-117 and 2019-CR-120 in Thomas district court. The
PSI report reflected that Aschenbrenner's criminal history score was C—based in part on
a 2019 juvenile adjudication for criminal threat—giving him a presumptive sentence of
29-27-25 months in each case. At the sentencing hearing on January 8, 2020, when asked,
Aschenbrenner stated he agreed that his criminal history score was C. The district court
sentenced Aschenbrenner in each case to 27 months' imprisonment but granted probation
for 24 months. The district court ordered the sentences to run consecutively.
Six months later, the district court found Aschenbrenner violated his conditions of
probation, revoked his probation, and ordered him to serve the original sentence in each
case. Aschenbrenner timely appealed the probation revocation, and the cases are
consolidated on appeal.
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ANALYSIS
Under the revised Kansas Sentencing Guidelines Act (KSGA), a defendant's
sentence depends on the crime of conviction and the defendant's criminal history score.
K.S.A. 2020 Supp. 21-6804(d). "Prior convictions of a crime defined by a statute that has
since been determined unconstitutional by an appellate court shall not be used for
criminal history scoring purposes." K.S.A. 2020 Supp. 21-6810(d)(9). In October 2019,
the Kansas Supreme Court held that "the portion of K.S.A. 2018 Supp. 21-5415(a)(1)
allowing for a conviction if a threat of violence is made in reckless disregard for causing
fear causes the statute to be unconstitutionally overbroad because it can apply to
statements made without the intent to cause fear of violence." Boettger, 310 Kan. at 822.
Citing these rules, Aschenbrenner argues, for the first time on appeal, that the
district court erred in calculating his criminal history score. He asserts that because his
criminal history score included a prior adjudication of criminal threat, and the PSI does
not reflect whether the adjudication was based on the intentional or reckless version of
the offense, his cases must be remanded for resentencing.
The State asserts that this court is barred from addressing Aschenbrenner's claim
because he agreed to his criminal history score on the record at sentencing. The State
cites State v. Corby, No. 122,584, 2021 WL 2275517 (Kan. App. 2021) (unpublished
opinion), rev. granted 313 Kan. 1043 (2021), to support its assertion. But assuming the
claim is preserved, the State concedes that remand is necessary.
Classification of prior convictions for criminal history purposes involves
interpretation of the KSGA. Statutory interpretation is a question of law subject to
unlimited review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018). Similarly,
whether a sentence is illegal under K.S.A. 2020 Supp. 22-3504 is a question of law
subject to unlimited review. State v. Becker, 311 Kan. 176, 191, 459 P.3d 173 (2020). An
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illegal sentence is a sentence "[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 time it is
pronounced." K.S.A. 2020 Supp. 22-3504(c)(1).
This court can hear Aschenbrenner's illegal sentence claim for several reasons.
First, Aschenbrenner correctly asserts that he can challenge the legality of his sentence
for the first time in an appeal from a probation revocation. See State v. Dickey, 305 Kan.
217, 220, 380 P.3d 230 (2016); K.S.A. 2020 Supp. 22-3504(a) (stating the court may
correct an illegal sentence at any time while the defendant is serving the sentence).
Second, the State's reliance on Corby as preventing review of this issue is
unpersuasive. In that case, Corby asserted for the first time in his appeal from a probation
revocation that his sentence was illegal because the State presented insufficient evidence
at sentencing to show that his prior convictions of fleeing and eluding were person
felonies. This court pointed to K.S.A. 2020 Supp. 21-6814, discussing the burden of
proof for criminal history scores, and found that if a defendant does not dispute the PSI
report at sentencing, then the PSI report meets the State's burden of proof. 2021 WL
2275517, at *3. This court summarized the statute, finding: "Either an admission by the
defendant or proof by the State is necessary—not both." 2021 WL 2275517, at *4. This
court then dismissed Corby's illegal sentence claim, finding that he agreed to his criminal
history score at sentencing and that he "simply argues that [the convictions] might have
been misdemeanors. Posing a mere possibility and making conclusory assertions that
contradict the admissions one made at sentencing is an insufficient basis for us to remand
for correction of an illegal sentence." 2021 WL 2275517, at *5.
Corby is distinguishable from the issue here. In Corby, the PSI plainly stated that
Corby's prior convictions of fleeing and eluding were person felonies, but he argued on
appeal that the State did not present evidence at sentencing to support that classification.
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Aschenbrenner's PSI is silent on whether his prior adjudication of criminal threat was for
the intentional or reckless version of the crime. Corby does not address a situation in
which the defendant's PSI included a prior adjudication of a crime defined by statute that
has since been declared unconstitutional. See K.S.A. 2020 Supp. 21-6810(d)(9).
Third, Kansas law is clear that a defendant's stipulation to a criminal history score
at sentencing prevents the defendant from later challenging the factual existence of a
conviction listed in the PSI, but the stipulation does not prevent the defendant from later
challenging the legal effect of the conviction for criminal history purposes. See State v.
Dickey, 301 Kan. 1018, 1032, 350 P.3d 1054 (2015); State v. Ruiz, 51 Kan. App. 2d 212,
231-32, 343 P.3d 544 (2015). Aschenbrenner is not challenging the factual existence of
his prior adjudication of criminal threat. Instead, he is challenging the legal effect of the
prior adjudication for criminal history purposes now that the portion of the applicable
statute allowing for a conviction of reckless criminal threat has been found
unconstitutional. As a result, Aschenbrenner's stipulation to his criminal history score at
sentencing does not prevent us from addressing the merits of his illegal sentence claim.
Turning to the merits, the PSI reflects that Aschenbrenner was adjudicated of
criminal threat in violation of K.S.A. 21-5415(a)(1) in Thomas district court case No. 19-
JV-04 in August 2019, but it is silent on whether he committed the intentional or reckless
version of that offense. The district court sentenced Aschenbrenner for his burglary
convictions in January 2020. By that time, Kansas law established that if he committed
the reckless version of criminal threat, then the juvenile adjudication could not be
counted in his criminal history score. See K.S.A. 2020 Supp. 21-6810(d)(9); Boettger,
310 Kan. at 822. If the adjudication is not included in Aschenbrenner's criminal history,
then his criminal history score would be F and his presumptive sentence for each burglary
conviction would have been 19-18-17 months. See K.S.A. 2020 Supp. 21-6804. Thus, if
Aschenbrenner committed the reckless version of criminal threat, then his sentence for
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each burglary conviction does not conform to the applicable statutory provision and is, in
fact, illegal. See K.S.A. 2020 Supp. 22-3504(c)(1).
The burden is on the State to prove a defendant's criminal history at sentencing.
State v. Obregon, 309 Kan. 1267, 1275, 444 P.3d 331 (2019). Because the PSI does not
establish which version of criminal threat Aschenbrenner committed, we must remand
this matter and direct the district court to apply the "'modified categorical approach'"—
which allows the examination of "'charging documents, plea agreements, transcripts of
plea colloquies, findings of fact and conclusions of law from a bench trial, and jury
instructions and verdict forms'"—to determine which version of criminal threat
Aschenbrenner committed. Obregon, 309 Kan. at 1274 (discussing the modified
categorical approach in relation to alternative means out-of-state crimes). This task
should be relatively easy because Aschenbrenner's juvenile adjudication occurred in
Thomas district court and a court can take judicial notice of its own records. K.S.A. 60-
409(b)(4); State v. Lowe, 238 Kan. 755, 759, 715 P.2d 404 (1986).
Aschenbrenner asks us to vacate his sentences and remand for resentencing, but
we need not do so because his current sentences may be legal. Instead, we remand this
matter to district court to determine whether Aschenbrenner's prior adjudication of
criminal threat was based on the intentional or reckless version of the statute. If the State
is unable to show that the adjudication was based on the intentional version of the statute,
then the district court must vacate Aschenbrenner's sentences for his burglary convictions
and resentence him using the correct criminal history score.
Remanded with directions.
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