State v. Murdock (

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 104,533
STATE OF KANSAS,
Appellee,
v.
JIMMY MURDOCK,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 21-4711(e) governs the classification of out-of-state crimes/convictions as
person or nonperson offenses. It provides in part that if the state of Kansas does not have
a comparable offense, the out-of-state conviction must be classified as a nonperson
offense.
2.
A fundamental rule for sentencing is that the person convicted of a crime is
sentenced in accordance with the sentencing provisions in effect at the time the crime was
committed.
3.
The appellate rule that the penalty parameters for an offense are fixed as of the
date of the commission of the offense is fair, logical, and easy to apply.
4.
Kansas did not begin classifying crimes as person or nonperson offenses until
1993 when the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., was enacted.
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5.
When calculating a defendant's criminal history that includes out-of-state
convictions committed prior to enactment of the Kansas Sentencing Guidelines Act,
K.S.A. 21-4701 et seq., the out-of-state convictions must be classified as nonperson
offenses. Prior caselaw contrary to this holding is overruled.
Review of the judgment of the Court of Appeals in an unpublished opinion filed September 9,
2011. Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed May 2, 2014.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed and remanded with directions.
Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger, of
the same office, was on the brief for appellant.
Jodi E. Litfin, assistant district attorney, argued the cause, and Natalie Chalmers, assistant district
attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.
The opinion of the court was delivered by
BILES, J.: Jimmy Murdock argues the district court erroneously calculated his
criminal history score during a sentencing proceeding by treating two prior out-of-state
convictions from 1984 and 1990 as person crimes instead of nonperson crimes. The issue
is rare because these prior out-of-state offenses were committed before enactment of the
Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., and the KSGA does
not expressly provide how such offenses should be classified. We conclude these
convictions should be treated as nonperson offenses. Accordingly, we reverse the Court
of Appeals and the district court and remand for resentencing with directions to classify
the two prior out-of-state convictions as nonperson offenses.
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FACTUAL AND PROCEDURAL BACKGROUND
Murdock pleaded guilty to two counts of aggravated robbery and one count of
robbery for crimes occurring in December 2008. To calculate his sentence, the district
court found Murdock had two Illinois robbery convictions from 1984 and 1990 and a
1996 Kansas robbery conviction. It classified all three prior convictions as person
offenses, which gave Murdock three or more adult convictions for person felonies. This
treatment placed him in criminal history category A under K.S.A. 21-4709. Murdock was
sentenced to 233 months' imprisonment for the first aggravated robbery conviction and
concurrent 36-month sentences for the remaining two convictions. He would have fallen
within criminal history category C if the two out-of-state convictions had been designated
as nonperson offenses, resulting in a lesser sentence. See K.S.A. 21-4709; K.S.A. 21-
4704.
Murdock timely appealed his sentences to the Court of Appeals, arguing the two
out-of-state convictions were wrongly classified as person offenses. The Court of
Appeals affirmed the district court in State v. Murdock, No. 104,533, 2011 WL 4031550,
at *3 (Kan. App. 2011) (unpublished opinion). Murdock petitioned for this court's
review, which was granted under K.S.A. 20-3018(b), with this court obtaining
jurisdiction under K.S.A. 60-2101(b).
ANALYSIS
The issue is whether the district court improperly scored Murdock's criminal
history because it classified his two Illinois robbery convictions as person offenses.
Murdock argues both crimes should have been scored as nonperson offenses under
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K.S.A. 21-4710(d)(8). In the alternative, he contends this court should determine the
legislature intended to designate pre-1993 convictions as nonperson offenses.
Standard of Review
This case turns on the interpretation of several sentencing statutes. Statutory
interpretation is a question of law subject to unlimited appellate review. State v. Guder,
293 Kan. 763, 765, 267 P.3d 763 (2012). If a statute is plain and unambiguous, appellate
courts do not speculate about legislative intent or resort to canons of construction or
legislative history. State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012).
Classifying pre-KSGA convictions
In scoring criminal history under the KSGA, distinctions are made between person
and nonperson crimes. Compare K.S.A. 21-3427 (aggravated robbery is a person offense)
with K.S.A. 21-3701 (theft is a nonperson offense). Generally speaking, person crimes
are weighted more heavily than nonperson crimes. See K.S.A. 21-4709.
K.S.A. 21-4711(e) governs the classification of out-of-state crimes/convictions. It
states in pertinent part:
"The state of Kansas shall classify the [prior out-of-state] crime as person or nonperson.
In designating a crime as person or nonperson comparable offenses shall be referred to. If
the state of Kansas does not have a comparable offense, the out-of-state conviction shall
be classified as a nonperson crime." K.S.A. 21-4711(e).
The KSGA does not define comparable offense, but this court has previously held a
comparable offense is determined by comparing the elements of the crimes, stating that
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"the offenses need only be comparable, not identical." State v. Vandervort, 276 Kan. 164,
179, 72 P.3d 925 (2003).
Murdock does not dispute that his out-of-state robbery convictions are comparable
to the Kansas crime of robbery, and a review of the elements of those crimes supports
this admission. Compare Ill. Com. Stat. ch. 270 5/18-1(a) (2003) with K.S.A. 21-3426.
But one must also identify the correct version of our Kansas statute to make this
comparison, which is where Murdock's dispute draws its focus.
Kansas did not begin categorizing crimes as person or nonperson offenses until
1993 when the KSGA was adopted. See L. 1992, ch. 239, sec. 1 (KSGA effective July 1,
1993). When Murdock was convicted of the Illinois robberies (which were felony
offenses) in 1984 and 1990, Kansas simply defined robbery as a "class C felony." K.S.A.
21-3426 (Ensley 1981). The record does not disclose the dates when the out-of-state
offenses were committed, but K.S.A. 21-3426 (Ensley 1981) was not amended from the
prior enactment in 1969 until 1992. See K.S.A. 21-3426 (historical notes). Therefore, it is
obvious the same penalty provision was in effect at the time Murdock committed his out-
of-state offenses. In December 2008, when Murdock committed the current crimes of
conviction, Kansas defined robbery as a "severity level 5, person felony." K.S.A. 21-
3426.
Murdock argues the comparable offense to his Illinois robbery convictions is
K.S.A. 21-3426 (Ensley 1981)—the statute in effect when the Illinois crimes were
committed. He notes K.S.A. 21-4710(d)(8), which pertains to scoring unclassified crimes,
states: "Unless otherwise provided by law, unclassified felonies and misdemeanors, shall
be considered and scored as nonperson crimes for the purpose of determining criminal
history." This statute, he reasons, requires his Illinois convictions to be treated as
nonperson offenses based on this court's holding in State v. Williams, 291 Kan. 554, Syl.
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¶ 4, 244 P.3d 667 (2010), that the comparable Kansas offenses must be determined as of
the date the defendant committed the out-of-state crimes.
In the Williams case, Williams had pleaded guilty to two counts of identity theft
for crimes occurring in 2005 and 2006. Her criminal history was scored based on five
State of Washington convictions for identity theft that she had committed between
December 2001 and September 2002. At the time Williams committed those out-of-state
crimes, Kansas classified identity theft—the comparable offense—as a person offense,
but it had reclassified that crime as a nonperson offense by the time Williams committed
and was sentenced for her Kansas crimes. The parties disputed whether the comparable
offense should be determined as of the date of her Kansas sentencing, when she
committed the Kansas offenses, or when Williams committed the prior Washington
offenses.
The Williams court held that in the absence of a statutory directive a comparable
offense should be determined as of the date the prior crime was committed. This
outcome, the court reasoned, was "consistent with our fundamental rule of sentencing for
a current in-state crime: sentencing in accordance with the penalty provisions in effect at
the time the crime was committed." 291 Kan. at 560. The court further held that fixing
the penalty parameters for an offense "'as of the date of the commission of the offense is
fair, logical and easy to apply.'" 291 Kan. at 560 (quoting Vanderwort, 276 Kan. at 180).
Since then, the Court of Appeals has followed Williams when the prior out-of-state
offense was committed after the sentencing guidelines were adopted in 1993. See, e.g.,
State v. McKinney, No. 102,906, 2010 WL 5185779, at *1 (Kan. App. 2010)
(unpublished opinion) (scoring a 2002 Oklahoma conviction based on the designation for
the comparable Kansas offense at the time the Oklahoma offense was committed). But
the Court of Appeals, including the Murdock panel, has adopted a different rule when the
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prior out-of-state crimes were committed before Kansas adopted the person/nonperson
offense designation in 1993.
The Murdock panel held that pre-1993 offenses should be designated based on the
current guidelines offenses, reasoning: "Kansas courts have routinely classified pre-1993
offenses as either person or nonperson for criminal history purposes by comparing the
offenses to current guidelines offenses." (Emphasis added.) Murdock, 2011 WL 4031550,
at *2; see State v. Mitchell, No. 104,833, 2012 WL 1649831, at *7 (Kan. App. 2012)
(unpublished opinion), petition for rev. filed June 4, 2012; State v. Mims, No. 103,044,
2011 WL 4563068, at *5 (Kan. App. 2011) (unpublished opinion).
Notably, this reference to "current guidelines offenses" is ambiguous. For
example, how is the panel's rule applied in cases like Williams when the legislature
modified the classification after the KSGA was adopted? Seemingly, the rule would
conflict with this court's controlling law as stated in Williams. In addition, the view
followed by the Court of Appeals in these cases is troubling because it originated in a
series of Court of Appeals cases that predate this court's Williams decision. See, e.g.,
State v. Henderson, No. 100,371, 2009 WL 2948657, at *3 (Kan. App. 2009)
(unpublished opinion), rev. denied 290 Kan. 1099 (2010); State v. Boster, No. 101,009,
2009 WL 3738490, at *4 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan.
1096 (2010). The Murdock panel did not address Williams in its analysis despite citing it
as holding "comparable Kansas offenses are determined by the date the defendant
committed the prior out-of-state offenses" while summarizing Murdock's claims.
Murdock, 2011 WL 4031550, at *1 (citing Williams, 291 Kan. at 560-62).
The panel did cite Farris v. McKune, 259 Kan. 181, 185-86, 911 P.2d 177 (1996),
as sufficiently analogous to support its holding. Murdock, 2011 WL 4031550, at *2. But
Farris is not applicable because it addresses the Department of Corrections' conversion
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of three offenders' preguidelines sentences to the sentencing guidelines, which was
controlled by K.S.A. 21-4724(c)(1). The Farris court held that "'[i]n converting a
sentence, the legislature intended that the Department of Corrections use records
available to it to determine what the defendant did when the crime was committed and
convert that crime to an analogous crime existing after July 1, 1993.'" 259 Kan. at 195
(quoting State v. Fierro, 257 Kan. 639, 650, 895 P.2d 186 [1995]). The KSGA lacks a
similar provision for persons who were not imprisoned at the time the KSGA was
enacted.
In the absence of a statutory directive, we are left with our decision in Williams
that the comparable Kansas offense should be determined as of the date the out-of-state
offenses were committed. Even though the State seeks a different rule in this appeal, we
must emphasize we adopted the current rule at the State's urging in Williams. See 291
Kan. at 559 (State argued this court should score the Washington offenses according to
their Kansas equivalents when the Washington offenses were committed).
Our analysis in Williams is indistinguishable from the analysis applicable to the
circumstances presented here, and the same policy considerations continue to apply.
Using the date the prior out-of-state crime was committed to calculate a defendant's
criminal history score is "consistent with our fundamental rule of sentencing for a current
in-state crime: sentencing in accordance with the penalty provisions in effect at the time
the crime was committed." 291 Kan. at 560. Moreover, fixing the penalty parameters as
of the date the crime was committed is fair, logical, and easy to apply. 291 Kan. at 560.
Applying that rule, robbery as defined in K.S.A. 21-3426 (Ensley 1981) is the
comparable Kansas offense. The penalty provision of that pre-1993 statute classifies
robbery as a class C felony, and it does not designate the offense as person or nonperson.
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Finally, since the statute does not specify whether it is a person or nonperson
offense, Murdock argues it must be scored as a nonperson offense under K.S.A. 21-
4710(d)(8), which provides that "unclassified felonies and misdemeanors, shall be
considered and are scored as nonperson offenses for the purposes of determining criminal
history." The plain language of the statute seems to apply in this circumstance, although
the legislature refers to person or nonperson offenses as "designations," not
"classifications," in K.S.A. 21-4711(e), (g). Notably, neither of these terms is defined in
K.S.A. 21-4703.
Murdock's view is misplaced. And although there may be other twists placed on
the statute, it is likely K.S.A. 21-4710(d)(8) was adopted to address the scoring of a very
limited number of current criminal statutes that do not categorize the crimes as person or
nonperson offenses. See, e.g., K.S.A. 21-4213 (unlawful failure to report a wound is a
"class C misdemeanor"); K.S.A. 21-4218 (unauthorized possession of a firearm on the
grounds of or within certain state buildings is a "class A misdemeanor"); K.S.A. 21-4312
(unlawful disposition of animals is a "class C misdemeanor"); K.S.A. 21-4409
(knowingly employing an alien is a "class C misdemeanor"). And we believe it unlikely
the legislature intended that K.S.A. 21-4710(d)(8) govern all pre-1993 convictions.
But there is no statutory mechanism either through K.S.A. 21-4710(d)(8) or
another KSGA provision allowing us to draw a distinction between the current guidelines
sentencing statutes and the pre-1993 criminal statutes. We hold that Murdock's two prior
out-of-state convictions must be scored as nonperson offenses under K.S.A. 21-
4710(d)(8) following our controlling Williams precedent. We recognize this rule results
in the classification of all pre-1993 crimes as nonperson felonies—an outcome the State
characterizes as unreasonable. But the solution to the State's complaint sits with the
legislature.
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As noted above, the legislature enacted K.S.A. 21-4724(c)(1), instructing the
Department of Corrections to recalculate certain inmates' criminal history classifications
"as if the [prior] crime were committed on or after July 1, 1993." The legislature can
amend the KSGA to address this issue as well if it deems an amendment appropriate.
We overrule all Court of Appeals decisions applying the rule recited by the Court
of Appeals panel in this case. We reverse the Court of Appeals and the district court and
remand for resentencing with directions to classify the prior out-of-state convictions as
nonperson offenses.
***
ROSEN, J., dissenting: I respectfully dissent from the majority's opinion finding
that all out-of-state crimes/convictions committed prior to 1993 must be classified as
nonperson offenses. Further, as a result of this decision, all in-state convictions prior to
1993, regardless of how violent or heinous, appear to be subject to the same outcome. I
would adopt the reasoning of the Court of Appeals that such a conclusion leads to an
unreasonable result and ignores the purpose and design of the Kansas Sentencing
Guidelines Act (KSGA), K.S.A. 21-4701 et seq.
In 1989, the Kansas Legislature established the Kansas Sentencing Commission
and directed the Commission to develop a sentencing guidelines model or grid, based on
fairness and equity, that provides a mechanism for linking justice and correction policies.
The purpose of the sentencing guidelines model was to establish rational and consistent
sentencing standards which reduce sentence disparity, including, but not limited to, racial
and regional biases that existed under then current sentencing practices. As a result, the
Commission identified and prioritized a set of goals to be attained in developing a
uniform sentencing guidelines system, the first three of which are germane to this appeal:
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1. To develop a set of guidelines that promotes public safety by
incarcerating violent offenders;
2. To reduce sentence disparity to ensure the elimination of any
racial, geographical or other bias that may exist;
3. To establish sentences that are proportional to the seriousness of
the offense and the degree of injury to the victim.
K.S.A. 2013 Supp. 74-9101(b).
Ultimately, the Commission recommended a presumptive sentencing system,
represented by sentencing grids for both nondrug and drug offenses, that attempts to
provide an appropriate sentence for a crime based upon the crime of conviction and the
individual's criminal history. See, e.g., K.S.A. 21-4704. In 1993, the legislature passed
S.B. 423, which incorporated both the sentencing guidelines and the substantive changes
to the criminal code correlating with the guidelines. See L. 1993, ch. 291 (effective July
1, 1993).
I include this brief history of our current sentencing structure to highlight the
significance of the person/nonperson offense designation as it relates to current and prior
crimes. The KSGA was enacted in part to address concerns regarding disparity in
sentencing practices across the state. See K.S.A. 21-4702. One such glaring disparity was
the treatment of nonviolent property crimes in our urban, suburban, and rural district
courts. Offenders convicted of property crimes with similar criminal histories were more
likely to face incarceration depending upon the geographic location of the crime as
opposed to any consideration of the nature of the crime, public safety, or recidivism. The
designation of person/nonperson crimes is an integral component of the sentencing
guidelines that addresses this disparity by distinguishing between those crimes that
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warrant the most severe penalties and those that now require consideration of nonprison
sanctions prior to incarceration. Generally, the presumptive sentence for nonperson
crimes is supervised probation as opposed to prison, depending on the offender's criminal
history. The majority properly recognizes that "person crimes are weighted more heavily
than nonperson crimes." Slip op. at 4.
While there is some merit to Murdock's statutory construction arguments, another
principle of statutory construction takes precedence.
"As a general rule, criminal statutes must be strictly construed in favor of the
accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the
accused. This rule of strict construction is nevertheless subordinate to the rule that
judicial interpretation must be reasonable and sensible to effect legislative design and
intent." State v. Gracey, 288 Kan. 252, 257-58, 200 P.3d 1275 (2009).
First, I would clarify the majority's finding that Murdock's reliance on K.S.A. 21-
4710(d)(8) is "misplaced." Slip op. at 9. The statute provides that "unclassified felonies
and misdemeanors, shall be considered and are scored as nonperson offenses for the
purposes of determining criminal history." The plain language of the statute does not
apply in this circumstance. "Unclassified felonies," as used in this statute, refers to the
limited number of felonies that were not classified at a specific severity level, not to the
designation of a crime as being a person/nonperson offense. For example, possession of
drugs without a stamp affixed, K.S.A. 79-5208—was an unclassified felony prior to 1994
(see L. 1994, ch. 291, sec. 83); altering a vehicle identification number, K.S.A. 8-113—is
an unclassified felony; and a number of other Chapter 8 driving offenses are or were at
one time unclassified felonies.
K.S.A. 21-4501(f) describes and fixes the punishment for unclassified felonies:
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"Unclassified felonies, which shall include all crimes declared to be felonies
without specification as to class, the sentence for which shall be in accordance with the
sentence specified in the statute that defines the crime. If no sentence is provided in the
statute, the offender shall be sentenced as for a class E felony."
Clearly, K.S.A. 21-4710(d)(8) has no application in this matter. Finding that this
statute provides no mechanism to draw a distinction between current sentencing statutes
and the pre-1993 criminal statutes, the majority, relying on State v. Williams, 291 Kan.
554, 244 P.3d 667 (2010), concluded that all pre-1993 out-of-state convictions must be
scored as nonperson offenses. Slip op. at 9.
The majority's holding would mean that almost no crime committed before 1993,
no matter how violent or serious, could be specified as a person felony in scoring the
criminal history for a crime committed post-1993. This simply is an intolerable result and
completely compromises a sentencing structure that has as its primary goal protecting
society from its most violent criminals.
I would distinguish Williams and limit its holding to the facts of that case. The
prior crimes in question were identity thefts and all committed post-1993 and, thus,
subject to a person/nonperson offense designation. At the time Williams committed her
prior crimes, identity theft was designated as a person offense, but it had been changed to
a nonperson offense by the time she was convicted and sentenced for her current crimes.
We were confronted with the question of which designation applies to the prior crimes,
not which designation to apply when one does not exist. I would simply narrow the
application of the Williams' holding to the facts of that scenario, i.e., when there is a
change in the person/nonperson offense designation of a prior conviction—not to all pre-
1993 offenses for which the designation of nonperson/person crimes was neither
envisioned nor determined.
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As the district court did here, Kansas courts have routinely designated pre-1993
offenses as either person or nonperson for criminal history purposes by comparing the
offenses to current guidelines offenses. This approach also harmonizes the statutory
requirement contained in K.S.A. 21-4724(c)(1) directing the Department of Corrections
to convert pre-1993 crimes/convictions for inmates to the analogous crimes existing after
July 1, 1993, on the applicable sentencing guidelines grid for criminal history purposes.
As we relied on for validating our holding in Williams, this resolution is fair, logical, and
easy to apply. There is simply no justification for altering the method that both district
and appellate courts have utilized for over two decades in making this determination.
To now treat all pre-1993 crimes, 22 years after the enactment of the KSGA, as
nonviolent nonperson crimes completely overlooks our sentencing structure, purpose, and
design. It is a result that unexpectedly opens the prison gates to inmates who have a long
history of committing violent crimes and pose the greatest threat to the public's safety.
For these reasons I dissent.
LUCKERT and MORITZ, JJ., join in the foregoing dissent.
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