State v. McCarty

NOT DESIGNATED FOR PUBLICATION
No. 122,067
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KENNY F. MCCARTY,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed March 26, 2021.
Affirmed in part and dismissed in part.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before WARNER, P.J., POWELL, J., and MCANANY, S.J.
POWELL, J.: In 2018, and as part of a plea agreement with the State, Kenny F.
McCarty pled guilty to reckless aggravated battery and the district court granted him a
dispositional departure to probation. In 2019, the State sought revocation of McCarty's
probation on several grounds, including his commission of a domestic battery against the
same victim. McCarty denied the allegation, and, after an evidentiary hearing, the district
court found him in violation of the terms and conditions of his probation, revoked his
probation, and imposed McCarty's underlying prison sentence. McCarty now appeals the
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revocation of his probation. He also, and for the first time on appeal, claims his sentence
is illegal because the district court erred by including several municipal court convictions
in his criminal history and by "double counting" two prior misdemeanor domestic battery
convictions rendering his criminal history score incorrect.
After a careful review of the record, we find sufficient evidence to support the
district court's finding that McCarty violated the terms and conditions of his probation.
We also find the district court did not abuse its discretion in revoking McCarty's
probation and ordering he serve his underlying prison sentence instead of giving him
another chance at probation. As for his illegal sentence claims, we find McCarty has
failed to make a colorable claim that his prior municipal court convictions were wrongly
included in his criminal history on the grounds they were uncounseled and, therefore,
dismiss that claim. We also find McCarty's two prior domestic battery convictions from
2007 and 2010 were not double counted and were properly included in his criminal
history as they were used to elevate another prior domestic battery from a misdemeanor
to a felony. As McCarty's sentence is not illegal based upon the record before us, we
affirm in part and dismiss in part.
FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a plea agreement, McCarty pled guilty to one count of aggravated
battery, a severity level 5 person felony. His conviction stemmed from an incident in
November 2017 during which he and his on-and-off girlfriend of 25 years, T.J., were
drinking and began arguing. During the argument, McCarty shoved T.J., causing her to
fall down and break her arm.
At McCarty's sentencing on May 10, 2018, and without objection from McCarty,
the district court determined his criminal history score to be B. The district court imposed
the mitigated presumptive grid sentence of 114 months' imprisonment for his aggravated
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battery conviction but granted a dispositional departure to probation for 36 months. One
of the conditions of his probation was that McCarty was to have no contact with T.J.
Roughly a year later, the State sought to revoke McCarty's probation, alleging he
had violated the conditions of his probation by (1) committing battery-domestic violence,
(2) violating a protective order, and (3) having contact with T.J. McCarty denied the
allegations and requested an evidentiary hearing.
At the hearing, T.J., McCarty, and McCarty's aunt testified. T.J. described her
relationship with McCarty as "a little rocky" over the two decades they had been together.
During their relationship the two lived together on and off for a long time in several
different homes. T.J. was aware that McCarty was not to have contact with her. After the
events of the underlying case, apparently T.J. left the couple's home temporarily, but she
kept her clothes, shoes, and "important paperwork" at the home on Piatt Street.
Eventually T.J. returned to the home because she had nowhere else to go.
According to T.J., on May 15, 2019, around 1 or 2 p.m., she was at the house on
Piatt Street alone, sitting in the front room. Both T.J. and McCarty had been drinking
alcohol that day, and T.J. testified that she was sitting on the couch "minding [her]
business" when McCarty returned to the house complaining about "something." T.J.
engaged with McCarty, which made him angrier, and they continued to argue. "[O]ne
thing led to another" and McCarty kicked T.J. in the face twice "for no reason." T.J.
called the police while McCarty fled down the street.
Eventually, McCarty returned to the house and was arrested by the Wichita Police
Department. According to T.J., officers talked to her inside the house while they kept
McCarty outside. T.J. allowed officers to photograph her face. She still had stitches in her
lip from a previous altercation, allegedly with McCarty, but T.J. did sustain new bruises
and scrapes in this altercation. T.J. was also arrested later that day on an outstanding
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warrant from the City of Wichita for failing to appear in court against McCarty as the
victim in another domestic violence case. During her testimony, T.J. repeatedly asked
that she be allowed to leave the witness stand, indicating she was very upset to be
testifying.
McCarty's testimony was rife with contradictions. He first testified that while on
probation he was not to have any contact with T.J. and claimed he was "staying with a
lady." But moments later McCarty then testified he was living at the house on Piatt and
that no one else was living with him. He claimed T.J. had her own apartment or "was
staying in somewhere."
Regarding the May 15, 2019 incident, McCarty testified he was in the living room
of the house and he noticed T.J. and the police walking through his yard. He claimed T.J.
suddenly burst inside the house and slammed the door behind her. He also claimed to
have opened the door for the police who were knocking and stating they could see T.J.
inside the house. He testified that the police took T.J. outside while he remained in the
house until he was arrested.
But later in his testimony, McCarty asserted that what drew his attention to the
door was not T.J. or the police in his yard but a sound as though one of his cats wanted in
"because they always knock on the bucket." He then stated T.J. walked down the side of
the house, called the police, and waited for them to arrive because she returned to the
porch and entered the house through the unlocked front door. This time he claimed T.J.
used a key that she kept with a neighbor to get inside of the house.
McCarty again testified that in May 2019 he was living at his house on Piatt and
claimed T.J. was not living with him. He initially denied speaking with the police but
then almost immediately admitted to talking with them in the back of the police vehicle
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following his arrest. McCarty claimed he did not know T.J. was coming over on the day
of the incident because she had not been there since he had been on probation.
McCarty then changed his story and claimed that he was not home when T.J. got
to the house. He claimed that he returned home from a meeting with his probation officer
and, as he came inside the house, heard a noise which sounded like one of his cats
wanting inside. He looked up to see two police vehicles "fly up in front of the house" and
T.J. come from the other side of his vehicle. He claimed that T.J. ran onto his porch past
him, went inside, and slammed the door in his face. He stated that he "said a few words"
to T.J. before opening the door for the police, who then proceeded into the house and
retrieved T.J. He then claimed that the officers kept him inside the house while they took
T.J. outside and then came back in and arrested him. While in the police vehicle he
claimed he told the officers he had a protection from abuse (PFA) order against T.J., and
the officers arrested T.J. after confirming the PFA's existence.
On cross-examination, McCarty admitted T.J. had lived at the house on Piatt "at
one time." He also admitted he told officers he had argued with T.J. the day of his arrest
about her drinking and some issues with her family. He then claimed, for the first time,
that someone dropped T.J. off at the house, she was drunk, and he confronted her.
He compared the May altercation to the facts underlying his 2018 aggravated
battery conviction, accusing T.J. of being drunk and passing out during the events of both
incidents. McCarty claimed he had seen the pictures taken by police and that T.J.'s
injuries were "old bruises" that she had not had "for many, many years." He then quickly
tried to backtrack this statement and claimed that he would not know because he was not
around her and did not recollect anything. The State pressed McCarty about T.J.
appearing freshly bloodied, and he denied touching her and said, "I wouldn't do nothin'
like that."
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On redirect, McCarty claimed that the May 2019 altercation was the first time he
had any contact with T.J. since being placed on probation.
McCarty's counsel also called McCarty's aunt to testify. She testified that she lived
about a block away from McCarty and stated she never went to McCarty's house but that
he always came to her house to visit. She saw T.J. at McCarty's house from time to time
as she was passing by. However, she could not say if anyone lived with McCarty because
she worked night shifts as a nurse, slept during the day, and did not visit McCarty's
house.
On May 15, 2019, she had just gotten home from work when a neighbor came
over and let her know that McCarty wanted her to go lock up his house. She drove to
McCarty's house and did not see T.J. immediately when she pulled up. As she got out of
her car at McCarty's house, she saw T.J. run across the street, but T.J. was far enough
away from her that she could not see whether T.J. was injured. Finally, McCarty's aunt
testified that she could not lock up the house that day because a police officer told her to
leave the house.
The district court found by a preponderance of the evidence that McCarty had
committed the offense of domestic battery. Specially, the district court stated: "Looking
at these allegations I am convinced well beyond a preponderance of the evidence that the
defendant committed the offense of battery [domestic violence], as alleged on the [15th]
of May, 2019, and that he violated the no contact order with the victim. And I will sustain
the violations." The district court elaborated that "this was more than [an] oops" and was
convinced there had been an altercation in which T.J. sustained injuries.
In light of finding that McCarty had committed a new crime while on probation—
which had been granted as the result of a dispositional departure—and McCarty's history
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of violence, the district court revoked McCarty's probation and ordered him to serve his
underlying 114-month prison sentence.
McCarty now appeals.
ANALYSIS
On appeal, McCarty raises two main points of error. First, he challenges the
revocation of his probation and imposition of sentence. Specifically, he argues
insufficient evidence supports the district court's finding that he violated the terms and
conditions of his probation. He also argues the district court abused its discretion when it
revoked his probation and imposed his underlying sentence. Second, McCarty argues for
the first time on appeal that his sentence is illegal. He claims his criminal history score is
incorrect because the district court wrongly included his prior municipal court
convictions in his criminal history, claiming the State failed to meet its burden of proving
that he was represented by counsel or that he waived his right to counsel. He also argues
the district court wrongly double counted two prior misdemeanor domestic battery
convictions as they were included in his criminal history and used to elevate another
domestic battery conviction from a misdemeanor to a felony.
Not surprisingly, the State rejects McCarty's contentions of error on their merits
but also argues McCarty's notice of appeal was so deficient that it failed to properly
invoke the jurisdiction of this court. Because the State's argument is jurisdictional, we
address it first.
I. WAS MCCARTY'S NOTICE OF APPEAL SUFFICIENT TO INVOKE OUR JURISDICTION?
The State argues we lack jurisdiction to hear McCarty's appeal. McCarty filed a
timely pro se notice of appeal after the revocation of his probation, but the State argues
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his notice of appeal does not reflect a desire to appeal—but rather is a K.S.A. 60-1507
motion. The State also argues the notice of appeal fails to meet the statutory requirements
that it accurately designate the judgment or part thereof McCarty wishes to appeal and
that it name the appellate court to which the appeal would be taken.
Whether appellate jurisdiction exists is a question of law subject to unlimited
review. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016). To the extent resolution
requires interpretation of a statute, our review is also unlimited. State v. Alvarez, 309
Kan. 203, 205, 432 P.3d 1015 (2019).
McCarty's notice of appeal begins by stating: "Comes now the Defendant, Kenny
F. McCarty moves this Court for an order of appeal on the above entitled matter." The
notice of appeal then goes on to identify potential ineffective assistance of counsel claims
regarding the evidentiary hearing for the revocation of his probation. Those claims have
not been pursued in this appeal.
As the State indicates, K.S.A. 2020 Supp. 60-2103(b) requires that the notice of
appeal "specify the parties taking the appeal; shall designate the judgment or part thereof
appealed from, and shall name the appellate court to which the appeal is taken." K.S.A.
60-2103(b) is liberally construed "'to assure justice in every proceeding.'" State v. Laurel,
299 Kan. 668, 673, 325 P.3d 1154 (2014); see State v. Kelly, 291 Kan. 563, 565, 244 P.3d
639 (2010). "'While the State only has limited appeal rights, a criminal defendant has a
nearly unlimited right of review.' [Citations omitted.]" State v. Berreth, 294 Kan. 98, 110,
273 P.3d 752 (2012). Generally, when a timely notice of appeal contains deficiencies,
appellate courts require the State to show it was prejudiced. Laurel, 299 Kan. at 674.
Although the State argues that McCarty's notice of appeal is a K.S.A. 60-1507
motion in disguise, the notice of appeal does not purport to be such a motion. Nothing in
the notice of appeal comports with any of the requirements for a 60-1507 motion,
8
meaning McCarty's notice of appeal cannot be successfully converted to a 60-1507
motion. See K.S.A. 2020 Supp. 60-1507; Supreme Court Rule 183 (2020 Kan. S. Ct. R.
223).
The State also argues that the notice of appeal does not properly designate the
ruling from which McCarty wishes to appeal. We can appreciate the State's argument
given the wording of the notice, but a liberal construction of the notice of appeal indicates
that McCarty seeks to appeal from the evidentiary hearing at which the district court
revoked his probation. Part of the pro se notice of appeal reads: "Because McCarty did
not have conflict free counsel at the time of the defendant's evidentiary hearing, he should
be granted effective counsel." Admittedly, this statement is an argument that McCarty
had ineffective assistance of counsel, but it also indicates he is appealing from the
evidentiary hearing.
Next, the State argues that the notice of appeal is deficient because it does not
indicate to which court McCarty is appealing. The State is correct as to this deficiency in
the notice of appeal. But we must note that McCarty drafted his notice of appeal pro se,
not with the assistance of counsel, and were we to dismiss McCarty's appeal he would be
unable to obtain relief. See Kelly, 291 Kan. at 565 ("Pro se pleadings are liberally
construed, giving effect to the pleading's content rather than the labels and forms used to
articulate the defendant's arguments."). In the interest of justice, we decline to allow this
deficiency to bar review of the merits of McCarty's claims, particularly in a criminal case,
as there is really no question as to which appellate court McCarty seeks relief. See K.S.A.
2020 Supp. 22-3601(a), (b).
Finally, the State argues it has been prejudiced because McCarty raises issues not
indicated in the notice of appeal or raises meritless ones. Practically speaking, however,
nothing is required by the State upon receipt of the notice of appeal; rather, the State
determines the issues on appeal by reading the docketing statement and brief filed by the
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appellant. The briefs, not the notice of appeal, "'should list all of the issues to be argued
by the parties and should contain the arguments and authorities for each issue. . . .
Whether a party has detailed its arguments in the notice of appeal does not affect the
State's practice or its appellate strategy.'" State v. Wilkins, 269 Kan. 256, 269, 7 P.3d 252(2000) (quoting State v. Boyd, 268 Kan. 256, 606, 7 P.3d 252 [2000]); see Supreme Court
Rule 6.02 (2020 Kan. S. Ct. R. 34) (content of appellant's brief); Supreme Court Rule
6.03 (2020 Kan. S. Ct. R. 35) (content of appellee's brief).
Because the State has not been prejudiced by the deficiencies in McCarty's pro so
notice of appeal, we conclude we have jurisdiction to address the merits of McCarty's
appeal.
II. DID THE DISTRICT COURT ERR IN REVOKING MCCARTY'S PROBATION?
McCarty argues insufficient evidence supports the district court's finding that he
violated the terms and conditions of probation, and he claims the district court abused its
discretion by revoking his probation and imposing his underlying prison sentence.
A district court's decision to revoke probation usually involves two steps: (1) a
factual determination that the probationer has violated a condition of probation, and (2) a
discretionary determination as to the appropriate disposition in light of the proved
violations. State v. Skolaut, 286 Kan. 219, Syl. ¶ 4, 182 P.3d 1231 (2008).
A. Sufficient facts support the district court's finding that McCarty violated the
conditions of his probation.
First, McCarty argues the district court erred in finding he violated the conditions
of his probation because the evidence presented did not establish a violation by a
preponderance of the evidence.
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We review a district court's findings of fact to determine if those findings are
supported by substantial competent evidence, and we review the district court's legal
conclusions de novo. Substantial competent evidence refers to legal and relevant
evidence that a reasonable person could accept as being adequate to support a conclusion.
State v. Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019). When reviewing the district
court's factual findings, we do "'not reweigh the evidence, assess the credibility of the
witnesses, or resolve conflicting evidence.'" State v. Dern, 303 Kan. 384, 392, 362 P.3d
566 (2015).
The State bears the burden of establishing a probation violation by a
preponderance of the evidence. See K.S.A. 2020 Supp. 22-3716(b)(2); State v. Gumfory,
281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). A preponderance of the evidence means
evidence that is "'of greater weight or more convincing than the evidence which is offered
in opposition to it.'" In re B.D.-Y., 286 Kan. 686, 691, 187 P.3d 594 (2008). When the
commission of a new crime is alleged, a "[c]onviction for the act which allegedly violated
the conditions of probation is not required" to satisfy the State's burden of proof. State v.
Lloyd, 52 Kan. App. 2d 780, 782, 375 P.3d 1013 (2016).
McCarty takes issue with T.J.'s "repeated attempts to escape further testimony
while on the stand," arguing that such attempts led to a burden of proof issue. He claims
the State failed to meet its burden of proof because "it offered nothing—such as physical
evidence or law enforcement testimony—to tip the scale in its favor." We disagree.
All that is required to find McCarty violated his probation is that it is more
convincing than not that McCarty battered T.J. that day, which is a lower evidentiary
standard than that needed to sustain a conviction. See In re B.D.-Y., 286 Kan. at 691.
McCarty complains the State did not offer any law enforcement testimony or physical
evidence. Yet even a conviction of the gravest offense can be based entirely on
circumstantial evidence. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016).
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Therefore, if a conviction can be sustained without physical evidence, then so too can a
finding that a probationer violated his probation be sustained by a preponderance of the
evidence.
At the evidentiary hearing, T.J. testified multiple times that McCarty kicked her
twice in the face. While McCarty denied these allegations, there is no dispute that the
parties had a tumultuous past riddled with incidents just like this one. T.J. clearly did not
want to testify, but her reasons for feeling this way and her demeanor on the stand are not
for us to assess. The district court was present, and only it can make such assessments.
See Dern, 303 Kan. at 392. Clearly, after weighing the evidence, the district court found
it more convincing than not that McCarty kicked T.J. that day. The testimony presented
was sufficient to support a finding that McCarty violated his probation by committing a
new offense when he kicked T.J. twice in the face. The district court did not err in finding
that McCarty violated his probation.
B. The district court did not err by imposing McCarty's underlying prison
sentence.
Next, McCarty argues the district court abused its discretion by imposing his
underlying sentence after revoking his probation rather than giving him another chance
on probation.
It is undisputed that McCarty was granted a dispositional departure to probation;
thus, the district court had the discretion to revoke his probation and order the imposition
of his underlying prison sentence for a single violation. See K.S.A. 2020 Supp. 22-
3716(c)(7)(B). Because revocation was clearly within the discretion of the district court,
unless it made a legal or factual error, we will set it aside only if no reasonable person
could agree with it. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert.
denied 565 U.S. 1221 (2012).
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We see nothing unreasonable in the district court's decision to impose McCarty's
underlying prison sentence. McCarty claims ordering him to serve his underlying
sentence was unreasonable because he needed treatment for his mental health issues.
While it is true McCarty had mental health issues, his probation violation was one of the
most egregious he could have committed—again battering his victim. The district court
gave significant weight to the fact McCarty repeated the same acts against the same
victim which led to his conviction and placement on probation in the first place. Given
McCarty's criminal history of repeated domestic violence and because his acts constituted
a new crime while on probation, the district court did not abuse its discretion by revoking
his probation and imposing his underlying prison sentence as a reasonable person could
easily agree with the district court. See 292 Kan. at 550. The facts in this case provided a
reasonable basis for the district court to conclude that McCarty was no longer amenable
to probation. The district court did not err.
III. IS MCCARTY'S SENTENCE ILLEGAL?
Finally, McCarty claims his sentence is illegal due to his criminal history score
being incorrectly calculated. Specifically, McCarty argues the district court erred in
including his prior municipal court convictions in his criminal history because the State
failed to meet its burden of proving that he had been represented by counsel for those
convictions. He also argues the district court erred in double counting his misdemeanor
domestic battery convictions.
An illegal sentence is a sentence imposed by a court that lacks jurisdiction; a
sentence that does not conform to the applicable statutory provisions, either in character
or the length of the punishment authorized; or a sentence that is ambiguous concerning
the time and manner in which it is to be served. K.S.A. 2020 Supp. 22-3504(c)(1).
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law
over which we exercise unlimited review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d
131068 (2019). The party asserting an illegal sentence bears the burden of proving some
evidentiary basis of illegality. See State v. Patterson, 262 Kan. 481, 485-86, 939 P.2d 909(1997).
The presentence investigation (PSI) report prepared for sentencing indicated
McCarty had a criminal history score of B. McCarty's criminal history is lengthy—31
entries, several of which are unscored convictions. To receive a criminal history score of
B, a defendant must have two adult convictions or juvenile adjudications for person
felonies. K.S.A. 2020 Supp. 21-6809. Here, McCarty's criminal history score of B was
based on the following prior Kansas convictions:
• Item 22: Battery—Bodily Harm—Domestic—07DV1054: municipal
conviction from 2007, classified as a person felony via multiple
misdemeanor conversion with items 27 and 30.
• Item 27: Battery—Bodily Harm—Domestic—10DV1507: municipal
conviction from 2010, classified as a person felony via multiple
misdemeanor conversion with items 22 and 30.
• Item 29: Domestic Battery—11CR3322: state conviction from 2011,
classified as a person felony.
• Item 30: Domestic Battery—Physical Contact—17DV1092: municipal
conviction from 2017, classified as a person felony via multiple
misdemeanor conversion with items 22 and 27.
Three of the municipal violations were scored as person misdemeanors (items 22,
27, and 30), which were converted into a single person felony. The second person felony
conviction used to elevate McCarty's criminal history score to B was his prior domestic
battery conviction (item 29).
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If the determination that any of these crimes are person felonies is in error, then
McCarty's criminal history score would be reduced to either C (one person felony
conviction) or G (one nonperson felony conviction and no person felony convictions).
See K.S.A. 2020 Supp. 21-6809. Such a reduction in his criminal history score would
also reduce his presumptive prison sentence. See K.S.A. 2020 Supp. 21-6804(a).
A. McCarty fails to allege facts requiring exclusion of his prior municipal
court convictions from his criminal history.
McCarty argues the district court erred in including his prior municipal court
convictions in his criminal history because the State failed to meet its burden of proving
that McCarty was represented by counsel for these convictions. Specifically, he argues
the PSI report does not show that he had counsel in those municipal cases or that he
waived the right to counsel. Thus, he maintains we must vacate his sentence and remand
the case to recalculate his criminal history score.
In response, the State shotguns a plethora of procedural arguments which it
contends bar our consideration of this claim: (1) McCarty lacks standing because he does
not actually claim his sentence is illegal; (2) we lack subject matter jurisdiction because
there is no relief we can grant McCarty; (3) McCarty abandoned any claim via inadequate
briefing; (4) the equitable principle of laches prevents consideration of this issue because
McCarty has never raised it before and "squander[s] the time and resources of this Court
and the State"; and (5) the equitable doctrine of unclean hands prevents our review
because McCarty seeks an advisory opinion by "raising of this non-issue for the first time
on appeal." The State also disputes the merits of McCarty's illegal sentence claims.
Rather than wade into the morass of the State's procedural arguments, we choose
instead to address the merits of McCarty's claim. See State v. McAlister, 310 Kan. 86, 90,
444 P.3d 923 (2019) ("K.S.A. 22-3504's statutory directive that an illegal sentence may
15
be corrected 'at any time' supersedes the normal procedural hurdles of res judicata and
retroactivity."). Essentially, McCarty argues his sentence is illegal via a collateral attack
of the constitutionality of his prior municipal court convictions. As we explain below, we
agree with the State that McCarty's argument lacks merit, principally because McCarty
does not actually claim his prior municipal convictions were uncounseled. Instead,
McCarty merely suggests that his prior municipal court convictions used to calculate his
criminal history may have been uncounseled.
"An uncounseled misdemeanor conviction obtained in violation of a person's Sixth
Amendment right to counsel may not be collaterally used for sentence enhancement in a
subsequent criminal proceeding." State v. Long, 43 Kan. App. 2d 328, Syl. ¶ 4, 255 P.2d
754 (2010). "At the sentencing hearing, the State bears the burden of proving the
constitutional validity of prior convictions used to enhance a sentence." State v. Jones,
272 Kan. 674, 681, 35 P.3d 887 (2001). K.S.A. 2020 Supp. 21-6814 provides in relevant
part:
"(a) The offender's criminal history score shall be admitted in open court by the
offender or determined by a preponderance of the evidence at the sentencing hearing by
the sentencing judge.
"(b) Except to the extent disputed in accordance with subsection (c), the
summary of the offender's criminal history prepared for the court by the state shall satisfy
the state's burden of proof regarding an offender's criminal history score.
"(c) Upon receipt of the criminal history worksheet prepared for the court, the
offender shall immediately notify the district attorney and the court with written notice of
any error in the proposed criminal history worksheet."
Here, McCarty admitted to both his criminal history and criminal history score as
set forth in the PSI report at the sentencing hearing. See K.S.A. 2020 Supp. 21-6814(a).
The following exchange occurred at McCarty's sentencing:
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"THE COURT: Okay. Mr. McCarty, have you had the opportunity to review the
Presentence Investigation Report with your attorney?
"[MCCARTY]: Yes, Your Honor.
"THE COURT: Did he explain to you how a criminal history score is
calculated?
"[MCCARTY]: Yes, Your Honor.
"THE COURT: Did he go over with you the list of prior criminal offenses that
are listed for you—
"[MCCARTY]: Yes.
"THE COURT: —which is fairly lengthy?
"He went over that with you?
"[MCCARTY]: Yes, Your Honor.
"THE COURT: Do you agree then that those prior offenses are accurately listed
and that your criminal history score is accurately calculated at B?
"[MCCARTY]: Yes, Your Honor.
"THE COURT: And you understand that B is the next highest criminal history
score?
"[MCCARTY]: Yes, Your Honor.
"THE COURT: Okay. The Court is going to find, without objection, that the
criminal history score for this defendant is B."
In addition, McCarty did not notify the district court or the district attorney of any alleged
error in his criminal history worksheet as required by K.S.A. 2020 Supp. 21-6814(c).
Thus, it appears the State satisfied its burden of proof at the sentencing hearing regarding
McCarty's criminal history in the manner set forth in K.S.A. 2020 Supp. 21-6814(b).
McCarty argues his admissions at sentencing are immaterial because the PSI
report is silent as to whether his municipal convictions were counseled. He also argues
that because he can raise an illegal sentence claim at any time, the State retains the
burden to prove the validity of these convictions. For support, McCarty directs us to State
v. Obregon, 309 Kan. 1267, 444 P.3d 331 (2019), which he claims stands for the
proposition that it is the State's burden, not his, to prove the validity of these prior
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municipal court convictions. Obregon involved the question of how to classify the
defendant's prior Florida burglary conviction. The person/nonperson classification of this
conviction turned on which version of the Florida burglary statute Obregon was
convicted. The PSI report only listed the statute generally, and Obregon apparently never
challenged his PSI report at sentencing. Our Supreme Court, while acknowledging that a
PSI report "frequently can satisfy the State's burden absent defendant's objection,"
determined that "more is required when the summary does not indicate which version of
the out-of-state offense the defendant committed." 309 Kan. at 1275. Our court expanded
Obregon's holding beyond situations where a prior conviction's classification is at issue
to also include the question of whether the prior conviction should be listed in a
defendant's criminal history at all. See State v. Anderson, No. 121,640, 2020 WL
6371059, at *4-5 (Kan. App. 2020) (unpublished opinion), petition for rev. filed
November 30, 2020; State v. McKoy, No. 121,636, 2020 WL 5739730, at *2-3 (Kan.
App. 2020) (unpublished opinion); State v. Arnold, No. 121,542, 2020 WL 5740900, at
*2 (Kan. App. 2020) (unpublished opinion).
The cases above can be distinguished on the grounds that they involve issues that
turned on which version of the relevant statutes the defendants had previously been
convicted—questions fundamentally different than the one before us. A PSI report is
required to list prior convictions, but a PSI report is not required to show whether a
defendant had the benefit of counsel in the case resulting in the prior conviction. See
K.S.A. 2020 Supp. 21-6813(b). Here, McCarty is challenging the validity of the
underlying proceedings supporting his prior convictions.
Our Supreme Court has held that a presumption of validity clings to the prior
conviction so that in a collateral attack it is the defendant, not the State, who bears the
burden of overcoming this presumption. Patterson, 262 Kan. at 485. The Patterson court
explained this principle had been applied in other postconviction proceedings that raised
other constitutional rights and, for Patterson to obtain a right to a hearing, he had to
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include some evidentiary basis for his claim other than mere conclusory allegations. 262
Kan. at 485; see Parke v. Raley, 506 U.S. 20, 31, 113 S. Ct. 517, 121 L. Ed. 2d 391(1992) ("Our precedents make clear, however, that even when a collateral attack on a
final conviction rests on constitutional grounds, the presumption of regularity that
attaches to final judgments makes it appropriate to assign a proof burden to the
defendant."). While it is true that an illegal sentence may be corrected "at any time while
the defendant is serving such sentence," including on appeal from the revocation of a
defendant's probation, there must be some showing that the sentence is, in fact, illegal.
K.S.A. 2020 Supp. 22-3504(a); State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016);
see State v. Neal, 292 Kan. 625, 632, 258 P.3d 365 (2011) (defendant alleged in "'sworn
to'" motion "he was never advised of his right to counsel in either of the [municipal] cases
nor did he ever waive it"). And "a defendant who collaterally challenges the
constitutional validity of prior convictions used to enhance his or her sentence, based on a
claim of the absence of counsel, has the burden to show he or she did not have the benefit
of counsel at the prior convictions." Jones, 272 Kan. at 681; Patterson, 262 Kan. at 490.
If the defendant fails to meet this burden, the appellate court presumes the enhanced
sentence "to be regular and valid." Jones, 272 Kan. at 681.
Although not cited to us by either party, we note that two other panels of our court
have addressed this question with opposite results. In State v. Roberts, No. 121,682, 2020
WL 5268197, at *4 (Kan. App. 2020) (unpublished opinion), rev. granted 312 Kan. ___
(January 28, 2021), the defendant raised the identical issue, and the panel held that the
defendant had the burden to provide some evidence beyond mere allegations to support
his motion to correct an illegal sentence. In State v. Beltran, No. 121,200, 2020 WL
7409937, at *3-4 (Kan. App. 2020) (unpublished opinion), the panel took the opposite
tack, relying on Obregon, and our cases applying it in different contexts, to essentially
agree with McCarty's position and hold that the defendant's sentence had to be vacated so
a determination could be made as to whether the prior convictions at issue had been
counseled. Given our analysis above, we obviously disagree with the Beltran panel's
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holding and rationale. See State v. Fleming, 308 Kan. 689, 706, 423 P.3d 506 (2018) (one
Court of Appeals panel not bound by another).
Here, McCarty has made no attempt to assert that he received an illegal sentence
or to show how his sentence was illegal. He merely alleges the State did not meet its
burden before the district court. Moreover, he never directly appealed his sentence and, in
his present collateral attack on his prior municipal court convictions, McCarty bears the
burden to overcome the presumption of validity which attaches to those prior convictions.
Instead, McCarty only suggests a possible scenario under which his sentence may have
been illegal. Given such briefing, we conclude McCarty has failed to make a colorable
claim that his sentences were illegal under K.S.A. 2020 Supp. 22-3504(c)(1). We dismiss
this part of McCarty's illegal sentence claim.
B. McCarty's misdemeanor domestic battery convictions were not double
counted.
Second, McCarty argues the district court erred in double counting his
misdemeanor domestic battery convictions. Specifically, he argues the district court
erroneously included two prior misdemeanor domestic battery convictions in his criminal
history which were used again to elevate another prior domestic battery conviction from a
misdemeanor to a felony, resulting in a higher criminal history score and making his
sentence illegal.
According to his PSI report, McCarty has a single prior person felony domestic
battery conviction in 2011 and three prior person misdemeanor domestic batteries. K.S.A.
2011 Supp. 21-5414(b)(3) states: "Domestic battery is a . . . person felony, if, within five
years immediately preceding commission of the crime, an offender is convicted of
domestic battery a third or subsequent time." Pursuant to this rule, McCarty's two prior
person misdemeanor domestic battery convictions from 2007 and 2010 were used to
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enhance his third conviction for domestic battery in 2011 from a person misdemeanor to
a person felony. Additionally, K.S.A. 2017 Supp. 21-6811(a) requires that "[e]very three
prior adult convictions . . . of class A and class B person misdemeanors in the offender's
criminal history, or any combination thereof, shall be rated as one adult conviction . . . of
a person felony for criminal history purposes." As a result, McCarty's prior person
misdemeanor domestic battery convictions from 2007, 2010, and 2017 were converted
into a single person felony.
McCarty argues that because his 2007 and 2010 domestic battery convictions were
used to elevate his 2011 domestic battery conviction from a misdemeanor to a felony,
they cannot be included in his criminal history and then be added with a third domestic
battery from 2017 and converted to a single person felony to be used in the calculation of
his criminal history score.
K.S.A. 2017 Supp. 21-6810(d)(10) controls this issue and limits how prior
convictions may be used:
"Prior convictions of any crime shall not be counted in determining the criminal
history category if they enhance the severity level, elevate the classification from
misdemeanor to felony, or are elements of the present crime of conviction. Except as
otherwise provided, all other prior convictions will be considered and scored." (Emphasis
added.)
McCarty contends this statute is ambiguous and the rule of lenity should be
applied to his benefit. He attempts to persuade us that the phrase "present crime of
conviction," which appears to modify the preceding clauses, only modifies the phrase "or
are elements" and does not modify the other two clauses—"enhance the severity level" or
"elevate the classification from misdemeanor to felony." Under McCarty's proposed
construction, his 2007 and 2010 prior misdemeanor domestic battery convictions could
not be included in his criminal history because they were also used to enhance his 2011
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domestic battery conviction from a misdemeanor to a felony. McCarty's construction
would also have the effect of not allowing those same prior misdemeanor domestic
battery convictions to be aggregated with his 2017 misdemeanor domestic battery
conviction to create another prior person felony conviction. See K.S.A. 2017 Supp. 21-
6811(a) (three person misdemeanors aggregated to create person felony in criminal
history).
McCarty's interpretation leads to absurd results. If we agreed with McCarty, then
K.S.A. 2017 Supp. 21-6810(d)(10) would read: "Prior convictions of any crime shall not
be counted in determining the criminal history category if they enhance the severity
level." Or: "Prior convictions of any crime shall not be counted in determining the
criminal history category if they elevate the classification for misdemeanor to felony."
Or: "Prior convictions of any crime shall not be counted in determining the criminal
history category if they are elements of the present crime of conviction." This parsing
leaves us with two sentence fragments and one sentence. McCarty attempts to repair this
absurdity by inserting "any offense" into both fragments. However, we merely interpret
statutes; we do not rewrite them.
Since 2004, we have consistently rejected McCarty's argument and held that two
misdemeanor domestic battery convictions can be used to both elevate a third domestic
battery to a felony and be aggregated with another person misdemeanor to create a person
felony. Such use of a defendant's prior convictions is permissible because none of the
prior convictions were used to elevate the present crime of conviction from a
misdemeanor to a felony; they were used to elevate a prior crime of conviction. See State
v. Wilmore, 57 Kan. App. 2d 469, 475-76, 453 P.3d 1192 (2019), rev. denied 311 Kan.
1050 (2020); Krebs v. State, No. 120,367, 2020 WL 5993923, at *6 (Kan. App. 2020)
(unpublished opinion); State v. Bishop, No. 119,961, 2019 WL 6973428, at *4 (Kan.
App. 2019) (unpublished opinion); State v. Higbee, No. 119,260, 2019 WL 6794500, at
*4 (Kan. App. 2019) (unpublished opinion), rev. denied 312 Kan. ___ (August 31,
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2020); State v. Herrera, No. 119,427, 2019 WL 2237237, at *2 (Kan. App. 2019)
(unpublished opinion), rev. denied 311 Kan. 1048 (2020); State v. Omar-Cruz, No.
110,698, 2014 WL 6909677, at *5 (Kan. App. 2014) (unpublished opinion); State v.
Smith, No. 107,266, 2013 WL 1339891, at *3 (Kan. App. 2013) (unpublished opinion);
State v. Temmen, No. 104,326, 2011 WL 1878141, at *2 (Kan. App. 2011) (unpublished
opinion); State v. Smith, No. 92,312, 2005 WL 1089054, at *2 (Kan. App. 2005)
(unpublished opinion); State v. Grant, No. 90,042, 2004 WL 719257, at *3-4 (Kan. App.
2004) (unpublished opinion).
McCarty also tries to distance this case from State v. Fowler, 311 Kan. 136, 457
P.3d 927 (2020), where our Supreme Court addressed similar claims of double counting
involving prior misdemeanor domestic battery convictions. While McCarty is correct that
the case is not directly on point, the Kansas Supreme Court's holding is significant
because it states that the "use of the same two prior misdemeanor domestic batteries both
to calculate a defendant's criminal history for his or her base sentence on a current
primary grid crime and to elevate a current domestic battery to a felony does not violate
K.S.A. 2015 Supp. 21-6810(d)(9)'s restriction on double counting." (Emphases added.)
311 Kan. 136, Syl. ¶ 2. Put another way, even if a domestic battery conviction is a
present crime of conviction and has been elevated to a felony because of two prior
misdemeanor domestic battery convictions, those two prior misdemeanor domestic
battery convictions can still be included in the defendant's criminal history without
violating the double counting rule. As K.S.A. 2015 Supp. 21-6810(d)(9)'s double
counting restriction mirrors K.S.A. 2017 Supp. 21-6810(d)(10)'s double counting
restriction, Fowler is applicable here. Compare K.S.A. 2015 Supp. 21-6810(d)(9) with
K.S.A. 2017 Supp. 21-6810(d)(10).
Here, two of McCarty's prior misdemeanor domestic battery convictions were
used to elevate another prior domestic battery conviction from a misdemeanor to a
felony, and then those same two misdemeanor domestic battery convictions plus a third
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misdemeanor domestic battery conviction were converted to a person felony in the
calculation of McCarty's criminal history score for his current sentencing. This is
permissible under Fowler and our court's prior precedents because both the conversion
and the enhancement only involve prior convictions. McCarty's suggested interpretation
of K.S.A. 2017 Supp. 21-6810(d)(10) cannot be harmonized with the remaining language
from the same subsection of the statute which requires that "all other prior convictions
will be considered and scored." See Wilmore, 57 Kan. App. 2d at 476. The Kansas
Sentencing Guidelines Act includes no other provision that prevents McCarty's first two
domestic battery convictions from being counted as part of his criminal history.
The district court did not violate K.S.A. 2017 Supp. 21-6810(d)(10)'s double
counting prohibition. Based upon the record before us, McCarty's criminal history score
was correctly calculated as B and his sentence is not illegal.
Affirmed in part and dismissed in part.
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