State v. Terrell

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,680
STATE OF KANSAS,
Appellee,
v.
ROBERT GLENN TERRELL,
Appellant.
SYLLABUS BY THE COURT
1.
The classification of prior offenses for criminal history purposes involves statutory
interpretation, which presents a question of law subject to unlimited appellate review.
2.
Under the Kansas Sentencing Guidelines Act, K.S.A. 2020 Supp. 21-6801 et seq.,
all prior convictions, whether out-of-state, pre-guidelines, or amended post-guidelines,
are to be classified as person or nonperson as of the time the new crime is committed.
Review of the judgment of the Court of Appeals in 60 Kan. App. 2d 39, 488 P.3d 520 (2021).
Appeal from Cowley District Court; NICHOLAS ST. PETER, judge. Opinion filed February 18, 2022.
Judgment of the Court of Appeals vacating the judgment of the district court is reversed. Judgment of the
district court is affirmed.
Kristen B. Patty, of Wichita, argued the cause and was on the briefs for appellant, and Robert G.
Terrell, appellant pro se, was on a supplemental brief.
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Natalie Chalmers, assistant solicitor general, argued the cause, and Ian T. Otte, deputy county
attorney, and Derek L. Schmidt, attorney general, were with her on the briefs for appellee.
The opinion of the court was delivered by
ROSEN, J.: Robert Glenn Terrell disputes how his criminal history was calculated
for sentencing purposes following his plea of guilty to aggravated escape from custody.
The Court of Appeals vacated the sentence, and this court granted review.
Factual Background
On November 19, 2018, Terrell entered a plea of guilty to one count of aggravated
escape from custody under K.S.A. 2020 Supp. 21-5911(b)(1)(G), a severity level 5
nonperson felony. Terrell's presentence investigation report included an offender
registration violation conviction from February 25, 2005, for a crime committed in 2004;
the report counted it as a level 10 person felony. Although the registration violation was
classified as a nonperson felony at the time of Terrell's guilty plea in 2005, the
presentence report reclassified it as a person felony under State v. Keel, 302 Kan. 560,
357 P.3d 251 (2015).
At his sentencing hearing, Terrell, who was representing himself but had standby
counsel, objected to the presentence investigation report's reclassification of the 2005
conviction from nonperson to person felony status. He argued that Keel controlled the
issue in his favor. The court rejected his argument, stating from the bench:
"Regarding the issue of whether or not his prior conviction for offender
registration should be scored as a person or nonperson felony, the court would find that at
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the time that Mr. Terrell was convicted, this crime was scored as a nonperson felony, as
is indicated in the PSI. State v. Keel provided that an offense should be scored as a
felony, based upon how it would be determined at the time of the current crime of
conviction was committed. In this particular instance, the violation of the Offender
Registration Act would be viewed as a person felony as of the day that Mr. Terrell left the
Department of Corrections without authorization. And, therefore, the Court would follow
the Keel case in this matter and find that it should be scored as a person felony at this
time."
The court then imposed a sentence that was a substantial downward durational
departure: instead of the standard guidelines sentence of 120 months, the court sentenced
Terrell to a prison term of 40 months, with 24 months' postrelease supervision.
Terrell's standby counsel filed a timely notice of appeal to the Court of Appeals.
On February 5, 2019, Terrell filed a motion pro se to withdraw his notice of appeal. On
the same day, he filed a motion to correct an illegal sentence, asserting, among other
claims, that the sentencing court illegally reclassified his 2005 conviction and sentence
from nonperson to person. After the trial court denied this motion, Terrell filed further
motions seeking reconsideration and additional requests to correct an illegal sentence. He
eventually took an appeal from an order denying one of his repeated motions to correct.
In a published opinion, the Court of Appeals vacated the reclassification of
Terrell's criminal history. State v. Terrell, 60 Kan. App. 2d 39, 488 P.3d 520 (2021). This
court granted the State's petition for review. On September 17, 2021, Terrell was released
on post-release supervision, but the appeal remains subject to review by this court.
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Classification of the 2005 Conviction
The classification of prior offenses for criminal history purposes involves statutory
interpretation, which presents a question of law subject to unlimited appellate review.
State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).
Terrell argues that his 2005 conviction for a crime he committed in 2004 should be
scored as a nonperson felony, which is how it was designated at the time he committed
that crime. The State argues that the 2005 conviction should be scored as a person felony
because that is how that crime is now designated. The Kansas Sentencing Guidelines Act,
K.S.A. 2020 Supp. 21-6801 et seq., does not explicitly inform the courts whether the
score at the time of the original sentence or the score at the time of the new sentence
should govern.
The district court, the Court of Appeals, and the parties disagree about whether
and how to apply this court's decision in State v. Keel, 302 Kan. 560, to Terrell's
situation.
The failure-to-register statute originally designated the crime as a nonperson
felony, but the statute was later amended to make the crime a person felony. K.S.A. 2004
Supp. 22-4903 provided: "Any person who is required to register as provided in this act
who violates any of the provisions of this act . . . is guilty of a severity level 10,
nonperson felony." The statute was amended in 2016 to read that a registration violation
"shall be designated as a person or nonperson crime in accordance with the designation
assigned to the underlying crime for which the offender is required to be registered under
the Kansas offender registration act." K.S.A. 2016 Supp. 22-4903(c)(1). Because the
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underlying crime was rape—a person felony—Terrell's failure to register would also
become a person felony.
A timeline may help clarify the issue:
2002: Terrell pleads guilty and is convicted of rape.
2004: Terrell commits an offender registration violation related to the rape
conviction.
2005: Terrell pleads guilty and is convicted of the offender registration violation.
The violation was designated a nonperson felony.
2015: The Kansas Supreme Court issues State v. Keel addressing how to score
pre-sentencing guidelines convictions.
2016: The offender registration statute is amended to designate a registration
violation involving rape as a person felony.
2018: Terrell is charged with and pleads guilty to aggravated escape from
custody.
2019: Terrell is sentenced based on a determination that his 2004 violation is now
scored as a person felony.
2021: The Court of Appeals determines that the district court improperly
transformed the offender registration conviction from a nonperson into a
person felony.
In Keel, this court addressed the problem of how to score convictions that
preceded the sentencing guidelines act and therefore lacked person or nonperson
designations. The resolution reached in Keel was to carry the undesignated pre-KSGA
conviction forward in time to when the current crime of conviction was committed and
apply the statutory designation in place at that time: "Thus, the classification of a prior
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conviction or juvenile adjudication as a person or nonperson offense for criminal history
purposes under the KSGA is determined based on the classification in effect for the
comparable Kansas offense at the time the current crime of conviction was committed."
302 Kan. at 590. This plain language supports the district court's decision to consider the
2004 violation to be a person felony.
Although the district court understood Keel to reclassify a prior conviction
according to whatever its classification was at the time of the commission of the new
crime, the Court of Appeals held that Keel described a different set of circumstances and
did not apply to Terrell's situation. In a broad sense, the Court of Appeals panel was quite
correct in distinguishing Keel; Keel addressed the kind of problem with which this court
has wrestled over the past two decades—how sentencing courts are to classify crimes that
were committed without an explicit person/nonperson designation, such as crimes
committed in other states or crimes committed before 1993.
In Keel, the issue was how to classify crimes committed before the sentencing
guidelines were enacted in 1993 in the absence of express statutory direction. Keel was
decided to address a specific problem—pre-guidelines felonies that did not fit the new
sentencing procedures. See Keel, 302 Kan. at 592 (Johnson, J., concurring in part and
dissenting in part) (opinion "eliminates the troublesome circumstance of Kansas having
no person felonies prior to the enactment of the Kansas Sentencing Guidelines Act").
But the issue in the present case is different. A common-law remedy for a missing
classification is not needed here. The Keel court explained the special circumstances of
that decision, circumstances that do not apply to Terrell's situation:
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"We start out by acknowledging that there is no explicit language in the KSGA
telling courts precisely how to classify in-state or out-of-state pre-KSGA convictions or
juvenile adjudications as person or nonperson offenses for criminal history purposes. This
means we cannot merely interpret text whose meaning and effect are plain." Keel, 302
Kan. at 572.
The Court of Appeals panel relied on several principles to conclude that Terrell's
2004 conviction should not be reclassified as a person felony:
• The doctrine of expressio unius est exclusio alterius—when something is
expressly included in one place, the failure to include it elsewhere implies that the
thing is not intended to be included elsewhere. The court looked to four statutory
provisions that expressly make the classification of a prior conviction count as of
"the date the current crime of conviction was committed." These are: pre-KSGA
Kansas adult felony convictions under K.S.A. 2020 Supp. 21-6810(d)(2); pre-
KSGA juvenile felony adjudications under K.S.A. 2020 Supp. 21-6810(d)(3)(B);
pre-KSGA Kansas adult misdemeanor convictions under K.S.A. 2020 Supp. 21-
6810(d)(6); and prior out-of-state convictions and juvenile adjudications under
K.S.A. 2020 Supp. 21-6811(e)(3). Those specific statutory directives are lacking
in the current case, implying that the Legislature did not intend to require or allow
reclassification of post-KSGA convictions. Terrell, 60 Kan. App. 2d at 44-45.
• K.S.A. 2020 Supp. 21-6810(d)(8). This statute addresses convictions for crimes
under statutes that have been repealed: "Prior convictions of a crime defined by a
statute that has since been repealed shall be scored using the classification
assigned at the time of such conviction." The Court of Appeals concluded that the
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same directive should apply to post-KSGA statutes that are subsequently amended
to change the person category designation. 60 Kan. App. 2d at 46.
• The rule of lenity. When a criminal statute is silent or ambiguous on a matter, the
rule of lenity applies to mandate that the statute be construed in favor of the
accused. State v. Reese, 300 Kan. 650, 653, 333 P.3d 149 (2014). Any uncertainty
about what the Legislature intended by its directives for classifying pre-KSGA
convictions, repealed post-KSGA convictions, and amended post-KSGA
convictions should operate in a defendant's favor. 60 Kan. App. 2d at 46.
The court concluded:
"A reasonable interpretation of K.S.A. 2020 Supp. 21-6810(d)(8) reflects a
legislative intent to classify in-state convictions under subsequently repealed statutes as
person or nonperson offenses based on the classification in effect at the time of the prior
conviction. But we find nothing in the KSGA reflecting a legislative intent to reclassify
prior post-KSGA convictions based on subsequent amendments to existing statutes." 60
Kan. App. 2d at 47.
Although we recognize that the Court of Appeals supported its decision with well-
reasoned analysis, we are ultimately persuaded that the State's position is more tenable.
We will discuss each of the Court of Appeals points in turn.
The doctrine of expressio unius est exclusio alterius: The statutory scheme was
silent with respect to scoring pre-guidelines convictions when this court decided Keel and
State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), overruled by Keel, 302 Kan. at
581. The Keel court did not decide that the guidelines act simply did not apply to pre-
guidelines sentences under the doctrine of expressio unius est exclusio alterius; instead,
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the court extended the statutory scheme, filling in the missing directives on how to score
pre-guidelines crimes. This common-law extension was codified in the statutes on which
the Court of Appeals based its expressio unius analysis.
Legislative intentions: The sentencing guidelines were enacted "'to standardize
sentences so that similarly situated offenders would be treated the same, thus limiting the
effects of racial and geographic bias.'" Keel, 302 Kan. at 574 (quoting State v. Paul, 285
Kan. 658, 667, 175 P.3d 840 [2008]). "[U]sing the date of the current crime removes the
permanent effect of how prior crimes are treated for purposes of calculating criminal
history, thereby providing a mechanism for sentences to reflect ever-evolving sentencing
philosophies and correction goals." 302 Kan. at 588. Updating the criminal history scores
as the Legislature chooses to amend them is consistent with a legislative intention to
score crimes in an evolving scheme, and it "removes the permanent effect of how prior
crimes are treated," consistent with the philosophy of Keel and of revised legislative
intentions. See 302 Kan. at 588.
Inconsistent results: The Court of Appeals decision produces inconsistent or
illogical results. A defendant convicted of a comparable out-of-state crime that Kansas
has changed from a nonperson to a person crime will be scored as a person crime.
Another defendant convicted of an in-state crime that is subsequently changed from a
nonperson to a person crime will be scored as a nonperson crime. The result is that an
individual committing essentially the same criminal conduct may receive different
criminal history scores, depending on whether the crime was committed in Kansas or in a
different state.
K.S.A. 2020 Supp. 21-6810(d)(8): Repeal is not the same as reclassification. The
wholesale repeal and recodification of much of the criminal code in 2011 would have the
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effect of freezing many older convictions in their pre-guideline status, no matter how they
were classified under guidelines statutes.
The rule of lenity. Although this rule would operate to protect Terrell, it could
operate against a defendant whose crime has been reclassified from person to nonperson,
such as identity theft. See Keel, 302 Kan. at 588. Registration offenses have been
classified as nonperson in all situations (K.S.A. 2004 Supp. 22-4903), then as person in
all situations (K.S.A. 2006 Supp. 22-4903), and now as person or nonperson, depending
on the underlying offense (K.S.A. 2020 Supp. 22-4903[c]). The Court of Appeals opinion
would help some defendants and harm other defendants; therefore, it is not a rule of
lenity.
While recognizing that Keel is simply dicta with respect to post-guidelines crimes,
it nevertheless provides guidance for how to calculate criminal histories when the post-
guideline classifications have changed over time. Keel noted that an advantage of scoring
based on the date the current crime of conviction was committed provides a means to
reflect "ever-evolving sentencing philosophies and correction goals." 302 Kan. at 588.
To adopt Terrell's position would mean applying a judicial construction to a
narrow topic on which the Legislature was silent, and that construction would be at odds
with the reasoning in Keel. We conclude that the better understanding of the statutory
sentencing scheme requires 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.
The judgment of the Court of Appeals vacating the judgment of the district court is
reversed. The sentence imposed by the district court is affirmed.
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