State v. Robinson ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,512
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
LARRY D. ROBINSON,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; AMY J. HANLEY, judge. Opinion filed March 18, 2022.
Affirmed.
Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
Emma Halling, assistant district attorney, Suzanne Valdez, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HURST, P.J., GARDNER, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Larry D. Robinson was found guilty of criminal threat and
misdemeanor domestic battery following his nolo contendere pleas. His presentence
investigation report calculated his criminal history score as A based on the inclusion in
his criminal history of a juvenile adjudication for criminal threat, a prior adult criminal
threat conviction, and prior adult convictions for attempted aggravated burglary and
conspiracy to commit aggravated burglary.
Robinson objected to his criminal history score on the grounds that his juvenile
adjudication for battery on a detention officer had decayed and should not be scored. He
1
also argued that his previous criminal threat conviction should not be included because
our Supreme Court found the statute under which he had been convicted was
unconstitutional. Finally, he argued that his prior convictions for conspiracy to commit
aggravated burglary and attempted aggravated burglary should be scored as nonperson
felonies.
The State agreed with Robinson's objections to including his juvenile adjudication
and his adult criminal threat conviction in calculating his criminal history score. But the
State contended that Robinson's convictions for conspiracy to commit aggravated
burglary and attempted aggravated burglary were properly scored as person felonies.
At sentencing, the district court agreed that Robinson's juvenile adjudication and
his prior adult criminal threat conviction should not be included in calculating Robinson's
criminal history score. But the court scored Robinson's prior convictions for conspiracy
to commit aggravated burglary and attempted aggravated burglary as person felonies,
resulting in a criminal history score of B and a guidelines sentence for his current 2019
criminal threat conviction, a severity level 9 person felony, that called for presumptive
prison. See K.S.A. 2020 Supp. 21-5415(a)(1), (c)(1); K.S.A. 2020 Supp. 21-6804(a).
Nevertheless, the court granted Robinson's motion for a dispositional departure and
sentenced him to 12 months of probation, with an underlying 14-month prison sentence
for his criminal threat conviction and a consecutive 6-month jail term for his
misdemeanor domestic battery conviction, resulting in 20 months' imprisonment for the
underlying sentence.
Robinson appeals, contending that the district court erred in scoring his prior
convictions for conspiracy to commit aggravated burglary and attempted aggravated
burglary as person felonies rather than as nonperson felonies.
2
Classification of prior offenses for criminal history purposes involves statutory
interpretation, which is an issue of law over which our review is unlimited. State v.
Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).
The outcome of this case is controlled by the recent decision of our Supreme Court
in State v. Terrell, 315 Kan. ___, 2022 WL 497319 (2022), which was filed on February
18, 2022, after Robinson had filed his appellate brief in this case. In Terrell, 315 Kan.
___, Syl. ¶ 2, our Supreme Court clarified how convictions should be scored for criminal
history purposes under the Kansas Sentencing Guidelines Act, K.S.A. 2020 Supp. 21-
6801 et seq.
Terrell pled guilty to aggravated escape from custody, a severity level 5 nonperson
felony. He previously had been convicted in 2005 of an offender registration violation.
Even though Terrell's registration violation was classified as a nonperson felony in 2005,
it was reclassified as a person felony under State v. Keel, 302 Kan. 560, 357 P.3d 251(2015), in connection with Terrell's current aggravated escape conviction. Terrell, 2022
WL 497319, at *1.
On appeal, Terrell argued that his offender violation conviction should have been
scored as a nonperson felony because that is how it was designated when he committed
the crime. The State argued that the conviction should be scored as a person felony
because the crime is currently designated as such. Our Supreme Court concluded,
consistent with the legislative intent that the sentencing guidelines standardize sentences
so that similarly situated offenders are treated the same, that "all prior convictions,
whether out-of-state, pre-guidelines, or amended post-guidelines, be classified as person
or nonperson as of the time the new infraction is committed." 2022 WL 497319, at *5.
Under the plain language of this decision, "all prior convictions" would include
Robinson's prior convictions for conspiracy to commit aggravated burglary and attempted
aggravated burglary. Terrell applies to Robinson because his direct appeal was pending at
3
the time Terrell was handed down. See State v. Williams, 311 Kan. 88, 95, 459 P.3d 540(2020) (citing State v. Murdock, 309 Kan. 585, 591-92, 439 P.3d 307 [2019]).
When Robinson committed his current crime in May 2019, aggravated burglary
was a person felony. See K.S.A. 2018 Supp. 21-5807(c)(2). Prior felony convictions for
attempt and conspiracy "shall be treated as a person or nonperson crime in accordance
with the designation assigned to the underlying crime." K.S.A. 2020 Supp. 21-6811(g).
Thus, Robinson's convictions for attempted aggravated burglary and conspiracy to
commit aggravated battery are both person felonies.
Robinson relies on Keel, 302 Kan. 560, for support. Keel does not apply. It
addressed a specific problem—pre-guidelines felonies that did not fit the new sentencing
procedures. Terrell, 2022 WL 497319, at *3. But here, Robinson's attempted aggravated
burglary and conspiracy to commit aggravated burglary convictions took place long after
the Legislature enacted the sentencing guidelines.
Robinson also relies on K.S.A. 2020 Supp. 21-6811(e)(3)(B). This subsection of
the statute does not apply. It deals exclusively with out-of-state convictions. Robinson's
convictions for attempted aggravated burglary and conspiracy to commit aggravated
burglary both took place in Kansas. K.S.A. 2020 Supp. 21-6811(e)(3)(B) does not apply.
Terrell controls. The district court did not err when it scored Robinson's previous
convictions for attempted aggravated burglary and conspiracy to commit aggravated
burglary as person felonies.
Affirmed.
4