State v. Horselooking

No. 115,656

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ALVIN P. HORSELOOKING, JR.,
Appellant.

SYLLABUS BY THE COURT

1.
Interpretation of a sentencing statute is a question of law over which appellate
courts have unlimited review.

2.
K.S.A. 2015 Supp. 21-6811(e)(1) mandates that out-of-state convictions shall be
used in classifying the offender's criminal history. An out-of-state crime will be classified
as either a felony or a misdemeanor according to the convicting jurisdiction. If the crime
is a felony in the convicting jurisdiction, it will be counted as a felony in Kansas. If the
crime is a misdemeanor in the convicting jurisdiction, it will be scored as a misdemeanor
in Kansas, and the sentencing court shall refer to the comparable Kansas offense to
determine whether it should be classified as a class A, B, or C misdemeanor.

3.
The Kansas Sentencing Guidelines Act contains no explicit language on how to
classify an out-of-state conviction as a felony or a misdemeanor for criminal history
purposes where the convicting jurisdiction does not designate crimes as felonies or
misdemeanors.

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4.
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. An appellate court must first attempt
to ascertain legislative intent through the statutory language enacted, giving common
words their ordinary meanings. When a statute is plain and unambiguous, an appellate
court should not speculate about the legislative intent behind that clear language, and it
should refrain from reading something into the statute that is not readily found in its
words. Only when a statute's text or language is ambiguous does the court turn to canons
of construction or legislative history to construe the legislature's intent.

5.
Generally, it is not the job of an appellate court to create judicially constructed
remedies to a flawed sentencing scheme; instead, any defect is for the legislature alone to
remedy.

6.
Under the rule of lenity, when a criminal statute is silent or ambiguous on a
matter, the statute must be construed in favor of the accused.

7.
Because K.S.A. 2015 Supp. 21-6811(e) is silent on how to classify an out-of-state
conviction as a felony or a misdemeanor for criminal history purposes when the
convicting jurisdiction does not make such a determination, then under the rule of lenity,
the conviction must be classified as a misdemeanor.

Appeal from Jackson District Court; JANICE D. RUSSELL, judge. Opinion filed June 30, 2017.
Vacated and remanded with directions.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

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 Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., MALONE and POWELL, JJ.

MALONE, J.: Alvin P. Horselooking, Jr., appeals his sentence following his
convictions of aggravated battery and driving under the influence of alcohol (DUI). The
district court assigned Horselooking a criminal history score of B based in part on his
Kickapoo Nation tribal conviction of residential burglary, which the district court scored
as a person felony for criminal history purposes. However, the Kickapoo Nation Tribal
Code does not designate burglary as being either a felony or a misdemeanor offense. As
his sole issue on appeal, Horselooking claims the district court erred when it scored his
prior Kickapoo tribal conviction as a felony for criminal history purposes. Because we
agree with Horselooking's claim, we vacate his sentence and remand for the district court
to resentence Horselooking using the correct criminal history score.

The pertinent facts are straightforward. Horselooking pled no contest to one count
of aggravated battery and one count of DUI, both of which occurred on August 19, 2015.
The presentence investigation report showed a criminal history score of B based in part
on a 2013 Kickapoo tribal conviction of residential burglary, scored as a person felony
for criminal history purposes. Horselooking filed an objection to his criminal history
score prior to sentencing, arguing that his Kickapoo tribal conviction should not be
scored as a felony. Specifically, Horselooking argued that the Kickapoo Nation Tribal
Code does not designate crimes as felonies or misdemeanors, and the Kansas sentencing
statute does not provide a mechanism for determining whether an out-of-state conviction
is a felony or a misdemeanor where the convicting jurisdiction does not differentiate
between the two. Horselooking asserted that his prior Kickapoo tribal conviction should
have been classified as a misdemeanor for criminal history purposes, thus changing his
criminal history score from B to D.

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 At the sentencing hearing on December 11, 2015, Horselooking renewed his
argument that his Kickapoo tribal conviction of residential burglary should be scored as a
misdemeanor rather than a felony for criminal history purposes because the tribal code
did not designate the offense as either a felony or a misdemeanor. Horselooking did not
object to the person classification of the burglary conviction. In fact, he stipulated that the
burglary involved a residence.

The State cited State v. Hernandez, 24 Kan. App. 2d 285, Syl. ¶ 2, 944 P.2d 188,
rev. denied 263 Kan. 888 (1997), which holds that when determining criminal history
under the Kansas Sentencing Guidelines Act (KSGA), if the convicting jurisdiction does
not delineate between felonies and misdemeanors, that determination is made by the
sentencing court by comparing the offense to the most comparable Kansas crime.
Because any method of burglary is classified as a felony in Kansas, the State argued that
Horselooking's tribal conviction should be classified as a felony for criminal history
purposes. The district court agreed with the State's argument and classified the Kickapoo
tribal conviction as a person felony. Based on Horselooking's criminal history score of B,
the district court sentenced him to 29 months' imprisonment with 12 months of
postrelease supervision. Horselooking timely appealed his sentence.

On appeal, Horselooking claims the district court erred when it scored his prior
Kickapoo tribal conviction of residential burglary as a felony for criminal history
purposes. He renews the argument he made in district court that the tribal code does not
designate crimes as felonies or misdemeanors, and the KSGA does not provide a
mechanism for determining whether an out-of-state conviction is a felony or a
misdemeanor where the convicting jurisdiction does not differentiate between the two.
Thus, Horselooking asserts that his Kickapoo tribal conviction is either unscoreable for
purposes of his criminal history or, alternatively, he argues that the tribal conviction
should be scored as a misdemeanor for criminal history purposes.

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 The State argues that based on this court's prior decisions in Hernandez and State
v. Lackey, 45 Kan. App. 2d 257, 246 P.3d 998, rev. denied 292 Kan. 968 (2011), the
sentencing court should look to the comparable Kansas offense to determine whether an
out-of-state conviction should be scored as a felony or a misdemeanor if the convicting
jurisdiction does not differentiate between the two. But the State asserts that "if this Court
decides [that Hernandez and Lackey] were wrongly decided, the State would agree with
Horselooking that his crime should be scored as a misdemeanor to comply with the
legislature's clear intent to have such crimes be counted in criminal history scores."

Resolution of the issue presented in this appeal requires the interpretation of the
KSGA. Interpretation of a sentencing statute is a question of law, and the standard of
review is unlimited. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

We begin by reviewing the applicable Kansas sentencing scheme for determining
an offender's criminal history classification in effect when Horselooking committed his
crimes on August 19, 2015. First, we note that convictions occurring in a tribal court are
considered out-of-state convictions. K.S.A. 2015 Supp. 21-6811(e)(4). The classification
of out-of-state convictions for criminal history purposes is controlled by K.S.A. 2015
Supp. 21-6811(e) which states in part:

"(1) Out-of-state convictions and juvenile adjudications shall be used in
classifying the offender's criminal history.
"(2) An out-of-state crime will be classified as either a felony or a misdemeanor
according to the convicting jurisdiction:
(A) If a crime is a felony in another state, it will be counted as a felony in
Kansas.
(B) If a crime is a misdemeanor in another state, the state of Kansas shall refer to
the comparable offense in order to classify the out-of-state crime as a class A, B or C
misdemeanor. If the comparable misdemeanor crime in the state of Kansas is a felony,
the out-of-state crime shall be classified as a class A misdemeanor. If the state of Kansas

5
 does not have a comparable crime, the out-of-state crime shall not be used in classifying
the offender's criminal history."

We note that before 2015, the KSGA provided even less direction on how
sentencing courts should classify out-of-state convictions as felonies or misdemeanors for
criminal history purposes. Prior to the amendment that went into effect on July 1, 2015,
the statute simply stated: "An out-of-state crime will be classified as either a felony or a
misdemeanor according to the convicting jurisdiction. If a crime is a felony in another
state, it will be counted as a felony in Kansas." See K.S.A. 2014 Supp. 21-6811(e).

K.S.A. 2015 Supp. 21-6811(e)(1) mandates that out-of-state convictions and
juvenile adjudications—including tribal convictions and adjudications—shall be used in
classifying the offender's criminal history. An out-of-state crime will be classified as
either a felony or a misdemeanor according to the convicting jurisdiction. K.S.A. 2015
Supp. 21-6811(e)(2). If the crime is a felony in the convicting jurisdiction, it will be
counted as a felony in Kansas. K.S.A. 2015 Supp. 21-6811(e)(2)(A). If the crime is a
misdemeanor in the convicting jurisdiction, it will be scored as a misdemeanor in Kansas,
and the court shall refer to the comparable Kansas offense to determine whether it should
be classified as a class A, B, or C misdemeanor. K.S.A. 2015 Supp. 21-6811(e)(2)(B).

The complicating issue here is that the Kickapoo Nation Tribal Code does not
differentiate between felonies and misdemeanors. The KSGA expressly provides how a
sentencing court shall classify an out-of-state conviction if the crime is a felony or a
misdemeanor in the convicting jurisdiction. But there is no explicit language in the
KSGA explaining how a court is to classify an out-of-state conviction as either a felony
or a misdemeanor when the convicting jurisdiction does not distinguish between the two.

This court first addressed this issue in 1997 in Hernandez. In that case, the
defendant's criminal history included three military convictions for drug offenses, but

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military convictions are not designated as felonies or misdemeanors. The defendant
argued that because the sentencing statute was silent on how to classify his military
convictions as felonies or misdemeanors, they had to be scored as misdemeanors. This
court disagreed, noting that the fundamental rule of statutory construction is that the
intent of the legislature governs where that intent can be ascertained, even though words,
phrases, or clauses at some place in the statute must be omitted or inserted. 24 Kan. App.
2d at 287. This court ultimately held:

"The legislature knows that under general principles of criminal jurisprudence, states
generally divide the seriousness of crimes into two basic categories, felonies and
misdemeanors. It is equally clear that the two most important factors for the court to
consider in determining a sentence under the KSGA is the criminal history of the
defendant and the severity of the crime committed. The specific intent of the legislature is
that all prior adult felony convictions, including expungements, be considered and scored
in determining a defendant's criminal history. [Citation omitted.]
"We conclude the legislature intended the sentencing court to compare a prior
conviction to the most comparable Kansas offense to make a felony or misdemeanor
determination when such conviction occurred in a jurisdiction that does not distinguish
between felonies and misdemeanors. We are convinced that such intent is clear when the
pertinent parts of the KSGA are construed in pari materia. For us to conclude otherwise
would effect an unreasonable result at odds with the legislature's manifest intent." 24
Kan. App. 2d at 288-89.

Fourteen years later, this court again addressed the same issue in Lackey. In that
case, the defendant had three Kansas City municipal convictions for domestic violence
and assault, which the sentencing court scored as one person felony under the statute that
allows person misdemeanors to be aggregated and scored as a person felony. The
defendant contested the sentencing court's determination that his municipal convictions
were misdemeanors because Missouri municipal convictions are not classified as felonies
or misdemeanors and instead are considered "quasi criminal" in nature. 45 Kan. App. 2d
at 261. The defendant argued that because the Kansas sentencing statute provides that

7
out-of-state convictions are to be classified as felonies or misdemeanors according to the
convicting jurisdiction, and because Missouri does not classify municipal convictions as
felonies or misdemeanors, his Missouri municipal convictions could not be included in
his criminal history score.

This court rejected the defendant's argument, finding that Hernandez applied:

"The Hernandez decision was published in 1997. A different panel of this court
followed the holding a year later in State v. Swilley, 25 Kan. App. 2d 492, 494, 967 P.2d
339, rev. denied 266 Kan. 1115 (1998). Although it had ample opportunity to do so, the
legislature has not modified the applicable statutes to repudiate the conclusions reached
by the Hernandez and Swilley courts. Where judicial construction of a statute has been in
place for a number of years, the legislature is deemed to have approved the construction,
and that construction is as much a part of the statute as if embodied in it in plain and
unmistakable language. [Citations omitted.]" 45 Kan. App. 2d at 264-65.

Based on the "controlling precedent" of Hernandez, the court in Lackey ruled that
the sentencing court was to make the felony or misdemeanor determination by comparing
the defendant's municipal convictions to the most comparable Kansas offense. 45 Kan.
App. 2d at 265. This court ultimately held that the district court correctly compared the
defendant's municipal ordinance convictions to the Class B misdemeanor offense of
battery in Kansas. 45 Kan. App. 2d at 265.

Applying the reasoning in Hernandez and Lackey, then whether Horselooking's
Kickapoo burglary conviction is a felony or a misdemeanor depends on how the
comparable Kansas crime is classified. Horselooking was convicted under Title 10,
Criminal Offenses, § 110 of the Kickapoo Nation Tribal Code, which defines burglary as:

"[B]reak[ing] into by any force whatsoever and enter[ing] in any manner any dwelling,
office, room apartment, tenement, shop, warehouse, store, mill, barn, stable, garage, tent,

8
 vessel, railroad car, airplane, motor vehicle, trailer or semitrailer, mobile home, or any
similar enclosed structure of another without consent with the intent to steal or commit
any offense punishable by imprisonment."

In determining the comparable Kansas crime, the court is to look to the version of
the statute in effect at the time Horselooking committed the current crime of conviction.
State v. Keel, 302 Kan. 560, 589-90, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865
(2016). The comparable Kansas crime here is residential burglary. K.S.A. 2015 Supp. 21-
5807(a)(1) provides that "[b]urglary is, without authority, entering into or remaining
within any . . . [d]welling, with intent to commit a felony, theft or sexually motivated
crime therein." "Burglary as defined in . . . [s]ubsection (a)(1) is a severity level 7, person
felony." K.S.A. 2015 Supp. 21-5807(c)(1)(A). Thus, Horselooking's Kickapoo conviction
for residential burglary would be a classified as a felony for criminal history purposes
under Hernandez and Lackey.

Horselooking, however, argues that Hernandez and Lackey were wrongly decided
and should not control the outcome of his case. For reasons we will endeavor to explain,
we find this argument is quite persuasive. "As a general rule, one panel of [the] Court of
Appeals is not bound by a decision of another panel of this court." Osterhaus v. Toth, 39
Kan. App. 2d 999, 1008, 187 P.3d 126 (2008), aff'd 291 Kan. 759, 249 P.3d 888 (2011).
Although separate panels of the Court of Appeals should strive to be consistent in
decision-making, ultimately the court must do its best to decide each case based on the
facts and the law, bearing in mind that the Kansas Supreme Court is the final arbiter of all
disputes.

In Kansas, a district court's authority to impose a sentence is controlled by statute.
State v. Kessler, 276 Kan. 202, 217, 73 P.3d 761 (2003). The most fundamental rule of
statutory construction is that the intent of the legislature governs if that intent can be
ascertained. State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016). An appellate

9
court must first attempt to ascertain legislative intent through the statutory language
enacted, giving common words their ordinary meanings. State v. Barlow, 303 Kan. 804,
813, 368 P.3d 331 (2016). When a statute is plain and unambiguous, an appellate court
should not speculate about the legislative intent behind that clear language, and it should
refrain from reading something into the statute that is not readily found therein. 303 Kan.
at 813. Only when a statute's text or language is ambiguous does the court turn to canons
of construction or legislative history to construe the legislature's intent. 303 Kan. at 813.

Here, the Kansas sentencing statute is not ambiguous or unclear; instead, it lacks
any provision to explain how a court is to classify an out-of-state conviction as a felony
or a misdemeanor when the convicting jurisdiction does not designate crimes as felonies
or misdemeanors. In this instance, courts should refrain from speculating about the
legislature's intent and should not insert a provision into the statute that the legislature
failed to include—which is exactly what the panel of this court did in Hernandez.
Generally, it is not the job of an appellate court to create judicially constructed remedies
to a flawed sentencing scheme; instead, any defect is for the legislature alone to remedy.
See State v. Horn, 291 Kan. 1, 12, 238 P.3d 238 (2010); Kessler, 276 Kan. at 217.

In Keel, our Supreme Court recently addressed a situation where the KSGA was
silent on how to classify an offender's prior convictions for criminal history purposes.
The specific issue in Keel was how sentencing courts should classify pre-KSGA
convictions as person or nonperson offenses for criminal history purposes. The issue was
significant because Kansas did not begin classifying crimes as person or nonperson
offenses until 1993 when the KSGA was adopted. See L. 1992, ch. 239, § 1 (KSGA
effective July 1, 1993). In analyzing how courts should construe the KSGA when there is
no explicit language in the KSGA addressing a sentencing issue, the court stated:

"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

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 juvenile adjudications as person or nonperson offenses for criminal history purposes. This
means we cannot merely interpret text whose meaning and effect are plain. [Citation
omitted.] This also is not a situation in which there is an unclear or ambiguous statutory
provision obviously meant to control the issue before us. In such circumstances, we
routinely move from statutory interpretation to statutory construction. [Citation omitted.]
And we have often recited that construction moves beyond text to divine legislative
intent, employing legal canons and examining legislative history and other background
considerations. [Citation omitted.]
"Here, in this unique circumstance, we are neither interpreting plain language nor
construing ambiguous language according to the clues of legislative intent. Rather, we
must interpret the entire Act, looking to the overall design and purposes of the KSGA and
construing the Act according to its spirit and reason in order to determine whether the
omission at issue is a reasonable indication that the matter excluded is irrelevant to the
statutory scheme and the legislative intent, or whether the omission is actually a 'silence
gap' that undermines—and introduces ambiguity into—other aspects of the Act. In the
latter circumstance, courts are ill-equipped to fill such a gap. Often, the wisest course is
for courts to defer to the legislature to act to fill such a gap. [Citations omitted.] In fact,
this may fairly be characterized as this court's default position." 302 Kan. at 572-73.

In Keel, the court went on to hold, given the overall design and structure of the
KSGA, that the classification of a pre-KSGA conviction as a person or nonperson offense
for criminal history purposes 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 589-90. In reaching this result, the court reasoned, in part, that "[d]espite the
lack of explicit person/nonperson designations for pre-KSGA crimes, the legislature
clearly contemplated that such crimes would be scored (i.e., classified) as a particular
type of prior conviction as listed in K.S.A. 1993 Supp. 21-4710(a)." 302 Kan. at 577.

Returning to the issue before us, the KSGA is silent on how to classify an out-of-
state conviction as a felony or a misdemeanor for criminal history purposes where the
convicting jurisdiction does not differentiate between the two. In this circumstance, we
are neither interpreting plain language nor construing ambiguous language to attempt to
11
ascertain legislative intent. This situation would appear to be what our Supreme Court in
Keel described as a "silence gap." See 302 Kan. at 573. As the court stated in Keel, "the
wisest course is for courts to defer to the legislature to act to fill such a gap. . . . In fact,
this may fairly be characterized as this court's default position." 302 Kan. at 573.

In Hernandez, this court "filled the gap" in the KSGA by holding that the
sentencing court must look to the most comparable Kansas crime to determine whether
an out-of-state conviction is a felony or a misdemeanor where the convicting jurisdiction
does not make such a determination. 24 Kan. App. 2d at 288-89. The court reasoned that
to conclude otherwise "would effect an unreasonable result at odds with the legislature's
manifest intent." 24 Kan. App. 2d at 289. But it is not for an appellate court to remedy
this apparent flaw in the sentencing scheme; instead, it is for the legislature alone to do
so. State v. Prine, 297 Kan. 460, 475, 303 P.3d 662 (2013) ("We cannot delete provisions
or supply omissions in a statute. No matter what the legislature may have really intended
to do, if it did not in fact do it . . . the defect is one that the legislature alone can
correct.").

Moreover, Lackey's reasoning that the legislature's failure to amend or modify the
sentencing statute after Hernandez' judicial construction constituted legislative approval
of this court's interpretation is not compelling. Our Supreme Court has made clear that
"'[m]ore important [than legislative acquiescence] is the application of the doctrine of
statutory interpretation that directs us to consider the plain language of the statutes.'
[Citation omitted.]" State v. Spencer Gifts, 304 Kan. 755, 765, 374 P.3d 680 (2016).
Legislative acquiescence can be, but is not always, indicative of legislative intent when
the legislature chooses not to amend or modify a statute after judicial construction of the
statute by our Supreme Court. See State v. Quested, 302 Kan. 262, 279, 352 P.3d 553
(2015). It is reasonable to assume that the doctrine of legislative acquiescence carries
even less weight in attempting to ascertain legislative intent when a statute has been
construed by an intermediate court of appeals rather than by our state Supreme Court.

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 In Hernandez, in addressing the issue before the court and deciding how to
interpret the KSGA, this court stated, in part, that in construing a statute the intent of the
legislature governs where that intent can be ascertained, "'even though words, phrases, or
clauses at some place in the statute must be omitted or inserted.' [Citation omitted.]" 24
Kan. App. 2d at 287. But the Kansas Supreme Court has not invoked that rule of statutory
construction for several years. Instead, in recent years, our Supreme Court has repeatedly
emphasized that an appellate court should refrain from reading language into a statute
that is not readily found therein. See, e.g., Barlow, 303 Kan. at 813; Keel, 302 Kan. at
572; Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918-19, 349 P.3d 469 (2015).

K.S.A. 2015 Supp. 21-6811 provides no mechanism for determining whether an
out-of-state conviction is a felony or a misdemeanor for criminal history purposes where
the convicting jurisdiction does not differentiate between the two. Even when the
pertinent parts of the KSGA are construed in pari materia, we cannot conclude, as this
court did in Hernandez, that the legislature clearly intended for sentencing courts to look
to the most comparable Kansas crime to determine whether an out-of-state conviction is a
felony or a misdemeanor where the convicting jurisdiction does not make such a
determination. We should refrain from inserting this remedy—or any other judicially
constructed remedy—into the statute to fix an apparent flaw in the sentencing scheme.
The wisest course is to defer to the legislature to fill this gap. See Keel, 302 Kan. at 573.

Based on the rules of statutory construction currently emphasized by the Kansas
Supreme Court, we do not believe that our Supreme Court would embrace this court's
rationale in Hernandez and Lackey in order to determine Horselooking's correct sentence.
Instead, in a situation like this one where the convicting jurisdiction does not designate a
prior conviction as a felony or a misdemeanor, we believe that our Supreme Court would
apply the rule of lenity to determine Horselooking's criminal history. Under the rule of
lenity, when a criminal statute is silent or ambiguous on a matter, the statute must be
construed in favor of the accused. Jordan, 303 Kan. at 1019.

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 Accordingly, because K.S.A. 2015 Supp. 21-6811(e) is silent on whether to
classify Horselooking's tribal conviction as a felony or a misdemeanor, then under the
rule of lenity, the conviction must be classified as a misdemeanor. Horselooking claims
that the rule of lenity requires that his tribal conviction cannot be scored in his criminal
history. This claim is unpersuasive, however, because the KSGA clearly mandates that all
out-of-state convictions—including tribal convictions—shall be included in a defendant's
criminal history score. See K.S.A. 2015 Supp. 21-6811(e)(1); K.S.A. 2015 Supp. 21-
6810(c).

Thus, the appropriate course of action under the rule of lenity is to classify the
tribal conviction as a misdemeanor rather than a felony. Having determined that
Horselooking's tribal conviction should be scored as a misdemeanor, the statute then
directs the sentencing court to refer to the comparable Kansas offense to determine
whether it is a class A, B, or C misdemeanor. K.S.A. 2015 Supp. 21-6811(e)(2)(B). If the
comparable crime in the State of Kansas is a felony, then the out-of-state crime shall be
classified as a class A misdemeanor. K.S.A. 2015 Supp. 21-6811(e)(2)(B).

As discussed above, the comparable Kansas crime is residential burglary. Under
the version of the Kansas burglary statute in effect when Horselooking committed his
crime of conviction, residential burglary is classified as a felony. K.S.A. 2015 Supp. 21-
5807(c)(1)(A). Therefore, Horselooking's tribal conviction of residential burglary should
be classified as a class A misdemeanor for criminal history purposes. K.S.A. 2015 Supp.
21-6811(e)(2)(B). Because the district court classified the tribal conviction as a felony
rather than a class A misdemeanor, we vacate Horselooking's sentence and remand for
the district court to resentence Horselooking using the correct criminal history score.

Before closing, we will briefly address the dissent's resolution of the issue
presented in this case. Although the State concedes that if Hernandez and Lackey were
wrongly decided, then Horselooking's burglary conviction should be scored as a

14
misdemeanor, the dissent asserts that the district court was right for the wrong reason in
scoring the conviction as a felony. Relying on definitions from Black's Law Dictionary
and Merriam-Webster's Collegiate Dictionary, the dissent notes that felonies generically
are "serious or major crimes" and misdemeanors, in turn, are "lesser or minor crimes."
Slip op. at 17 (Atcheson, J., dissenting). The dissent goes on to discern that the Kickapoo
Nation's codes governing substantive crimes and criminal procedure demonstrate that
burglary is considered a serious or major crime by the tribe based primarily on the
availability of banishment as a potential penalty. The dissent maintains that crimes in
which banishment may be imposed as a penalty should be considered "the equivalent of
felonies" in the Kickapoo Nation's criminal justice system. Slip op. at 24 (Atcheson, J.,
dissenting). Thus, the dissent concludes that the district court correctly scored
Horselooking's tribal conviction as a felony for criminal history purposes.

This resolution is appealing because it is highly respectful to tribal legal traditions
and it attempts to allow the Kickapoo Nation to determine whether Horselooking's tribal
conviction would more likely be viewed by the tribe as a felony or a misdemeanor. But
rather than relying on generic definitions of the terms "felony" and "misdemeanor," the
Kansas criminal code provides precise definitions of these terms. A "felony" is defined as
"a crime punishable by death or by imprisonment in any state correctional institution or a
crime which is defined as a felony by law." K.S.A. 2015 Supp. 21-5102(a). "All other
crimes [except for traffic infractions or cigarette or tobacco infractions] are
misdemeanors." K.S.A. 2015 Supp. 21-5102(d). These definitions, of course, do not
apply to how other jurisdictions define the terms.

K.S.A. 2015 Supp. 21-6811(e)(2)(A) explicitly states: "If a crime is a felony in
another state, it will be counted as a felony in Kansas." (Emphasis added.) Our legislature
chose to use the term "felony" in the statute. We cannot presume, as the dissent does, that
the legislature intended this provision to simply mean that if a crime is a serious or major
crime in another state, it will be counted as a felony in Kansas. As our Supreme Court has

15
repeatedly emphasized, in attempting to ascertain legislative intent, an appellate court
should refrain from reading language into a statute that is not readily found therein. See
Barlow, 303 Kan. at 813.

The dissent concludes that the Kickapoo Nation views burglary as a serious crime
based on the availability of banishment as a punishment. However, we do not know
whether other tribal codes draw this same distinction between serious crimes and minor
crimes. We do not believe that a sentencing judge, in calculating a defendant's criminal
history score, should be expected to review and interpret tribal codes and traditions in
order to ascertain whether a tribal conviction is for a "serious or major crime" and thus is
the "equivalent of a felony." Moreover, we cannot be certain that this solution is what our
legislature has intended. The KSGA fails to explain how a sentencing court is to classify
an out-of-state conviction as either a felony or a misdemeanor when the convicting
jurisdiction does not designate the offense as either a felony or a misdemeanor. As our
Supreme Court has instructed, in a situation like this one, the wisest course of action is to
defer to the legislature to act to fix the problem. Keel, 302 Kan. at 573.

Vacated and remanded with directions.

***

ATCHESON, J., dissenting: The issue here is how the Jackson County District
Court should have considered Defendant Alvin P. Horselooking, Jr.'s, conviction for
residential burglary in the Kickapoo Nation in determining his criminal history for
sentencing on his crimes of conviction in this case. The majority frames a false issue and
concludes that because the Kickapoo Nation's criminal code doesn't explicitly label
crimes using the terms "felony" and "misdemeanor," the Kansas sentencing guidelines
require Horselooking's burglary conviction be deemed a misdemeanor. I respectfully
dissent. The Kickapoo Nation draws a clearly discernable distinction in its criminal code

16
and code of criminal procedure between serious crimes as a class and minor crimes as a
class. And because residential burglary is a serious crime in the Kickapoo Nation,
Horselooking's conviction should have been treated as a felony in determining his
criminal history. The district court, therefore, was correct, albeit for a wholly incorrect
reason.

The Kansas sentencing guidelines require criminal defendants' felony convictions
be counted in determining their criminal histories. K.S.A. 2015 Supp. 21-6803(c)
(defining "criminal history"). Out-of-state convictions are to be counted, and, by
definition, those include convictions in tribal courts. K.S.A. 2015 Supp. 21-6811(e).
Pertinent here, K.S.A. 2015 Supp. 21-6811(e)(2) provides that "[a]n out-of-state crime
will be classified as either a felony or misdemeanor according to the convicting
jurisdiction: (A) If a crime is a felony in another state, it will be counted as a felony in
Kansas [for criminal history purposes]." The terms "felony" and "misdemeanor" have
recognized meanings within the law. Felonies generically are serious or major crimes.
Black's Law Dictionary 736 (10th ed. 2014) (defining "felony" as "[a] serious crime" and
"[a]lso termed major crime"). Misdemeanors, in turn, are lesser or minor crimes. Black's
Law Dictionary 1150 (10th ed. 2014) (defining "misdemeanor" as "[a] crime that is less
serious than a felony"). The common or lay meanings of the words basically match the
legal definitions. Merriam-Webster's Collegiate Dictionary 460 (11th ed. 2004) (defining
"felony" as "a grave crime"); Merriam-Webster's Collegiate Dictionary 793 (11th ed.
2004) (defining "misdemeanor" as "a crime less serious than a felony"). I have no reason
to think the Kansas Legislature meant something different in using those words in the
sentencing guidelines. State v. Kendall, 300 Kan. 515, 521, 331 P.3d 763 (2014) (words
in statute should be given their ordinary meaning).

Accordingly, the legislature intended that a conviction for what another
jurisdiction treats as a serious crime be scored as a felony for criminal history purposes,
while a minor crime from that jurisdiction should be scored as a misdemeanor. If the

17
jurisdiction uses the terms felony and misdemeanor, those would control, as K.S.A. 2015
Supp. 21-6811(e) directs. Kansas, of course, explicitly designates crimes as felonies or
misdemeanors.[*]

[*]I put to one side as a law school hypothetical a situation in which the foreign
jurisdiction uses the terms "felony" and "misdemeanor" but defines them in an
exceedingly eccentric way. I don't know if there is such a place, and we don't face that
problem here.

The Kickapoo Nation codes do not classify crimes as felonies or misdemeanors.
But as I discuss in more detail later, the types of punishment that may be imposed for
various wrongs under the Kickapoo Nation criminal code create an obvious line of
demarcation between those considered serious crimes and those considered to be lesser
offenses. The serious crimes include banishment from the tribe for a term of years or for
life as a potential punishment. Other offenses do not permit banishment. So when the
majority frames the issue around the failure of the Kickapoo Nation's criminal law to
"differentiate between felonies and misdemeanors," it really creates a false construct. Slip
op. at 6. What the Kickapoo Nation's criminal law does not do is attach the label of
felony or misdemeanor to particular crimes. But that law plainly and clearly does separate
crimes in a binary way between serious and minor violations of the code. And that
separation is what the Kansas Legislature requires for criminal history purposes in K.S.A.
2015 Supp. 21-6811(e) governing convictions from other jurisdictions.

Looked at narrowly, the majority, in effect, inserts a condition into K.S.A. 2015
Supp. 21-6811(e)(2)(A) and applies that subsection as if it read: "If a crime is labeled or
termed a felony in another state, it will be counted as a felony in Kansas." The statute,
however, neither says that nor imposes such a rote bureaucratic formality. Should another
jurisdiction not use the terms felony and misdemeanor to classify crimes, a Kansas court
weighing the effect of such a conviction for criminal history purposes may examine

18
whether that jurisdiction considers the crime a serious or major one—which is to say a
felony without the label.

The seriousness of a crime generally may be measured by the potential
punishment attached to it. Indeed, that is the common means of differentiating felonies
from misdemeanors. See 1 LaFave, Substantive Criminal Law § 1.6 (2d ed. 2003).
Historically, felonies have been punishable by a year or more in prison, and
misdemeanors by a year or less in jail. 1 LaFave, Substantive Criminal Law § 1.6 (2d ed.
2003); see State v. Dugan, 47 Kan. App. 2d 582, 600-01, 276 P.3d 819 (2012); 18 U.S.C.
§ 3559(a) (2012) (felonies punishable by sentences in excess of 1 year; misdemeanors
punishable by sentence of 1 year or less); United States v. Other Medicine, 596 F.3d 677,
682 (9th Cir. 2010). Felonies, i.e., serious crimes, may also trigger civil disabilities that
misdemeanors do not. See Dugan, 47 Kan. App. 2d at 600-01.

In short, another jurisdiction's failure to use the labels felony and misdemeanor to
describe their codified crimes doesn't set off a systemic malfunction in K.S.A. 2015
Supp. 21-6811(e). A district court considering a conviction from such a jurisdiction for
criminal history purposes may examine that jurisdiction's scheme of crimes and
punishments to see if it imposes a classification distinguishing between serious crimes,
on the one hand, and minor crimes, on the other. If the classes replicate a division
comparable to the historical or common one between felonies and misdemeanors, then
the district court should apply that scheme and treat the conviction accordingly for
criminal history purposes. So missing labels alone do not require the district court to
declare a default in scoring a conviction from another jurisdiction.

In some cases, an examination of the other jurisdiction's statutory scheme may
yield no sufficiently clear result to say that a particular crime would be labeled a felony
or a misdemeanor if that jurisdiction were to affix labels. As I will explain, we don't have
that problem here. But in that event, a definitive characterization of the particular crime

19
as a felony or felony-like by that jurisdiction's highest court ought to be sufficient in the
absence of legislative guidance. And at least some crimes—premediated murder and rape
come to mind—may be sufficiently grave under any sensible designation that a
conviction could be scored as a felony without an explicit declaration to that effect from
the legislature or the courts of the convicting jurisdiction.

Were the law in the other jurisdiction truly inscrutable as to a particular crime,
K.S.A. 2015 Supp. 21-6811(e) specifically and the Kansas sentencing guidelines
generally appear to offer no guidance in classifying it for criminal history purposes. And,
as an abstract proposition, I tend to agree with the majority that such a conviction ought
to be scored as a misdemeanor. The rule of lenity would at least superficially seem to
require as much. The Kansas court's effort to assess the conviction as being serious or
minor would have come to an ambiguous conclusion, and the sentencing guidelines are
silent on how to resolve that ambiguity. See State v. Cheeks, 302 Kan. 259, 260, 352 P.3d
551 (2015). Even then, the conviction shouldn't be discarded entirely—it would have to
be either a serious crime (effectively a felony) or a minor crime (effectively a
misdemeanor).

I also agree with the majority that State v. Hernandez, 24 Kan. App. 2d 285, Syl.
¶ 2, 944 P.2d 188, rev. denied 263 Kan. 888 (1997), and the reiteration of its holding in
State v. Lackey, 45 Kan. App. 2d 257, 264-65, 246 P.3d 998, rev. denied 292 Kan. 968
(2011), impose a default rule that cannot be reconciled with the language of K.S.A. 2015
Supp. 21-6811 and the legislative intent for scoring convictions from other jurisdictions.
If the convicting jurisdiction does not employ the labels felony and misdemeanor for its
crimes, those decisions would revert to how Kansas labels its comparable crime.
Although that rule generally supplies a result, the result has no connection to what the
legislature described or intended in K.S.A. 2015 Supp. 21-6811(e)(2)(A). The legislature
wanted the felony-misdemeanor determination for an out-of-state conviction to be based
on that jurisdiction's classification or characterization of the crime. Nothing more, and

20
nothing less. So a default rule applying the Kansas classification for a comparable crime
amounts to an unacceptable judicial rewrite of the statute. It is about as arbitrary a
solution as choosing to rely on the classification of an equivalent common-law crime or a
like crime in the Model Penal Code.

Ironically, the majority essentially invokes the misguided approach from
Hernandez and Lackey in an attempt to undercut my plain reading of K.S.A. 2015 Supp.
21-6811(e)(2)(A). The majority cites the legislature's classification of and means for
differentiating Kansas crimes as felonies, misdemeanors, traffic infractions, and cigarette
or tobacco infractions, as set forth in K.S.A. 2015 Supp. 21-5102, and says that scheme
should be applied to out-of-state convictions from jurisdictions that don't label their
crimes as felonies or misdemeanors. But K.S.A. 2015 Supp. 21-6811(e)(2) clearly directs
that out-of-state convictions are to be "classified . . . according to the convicting
jurisdiction." While the panels in Hernandez and Lackey looked at how Kansas classified
the specific crime comparable to an out-of-state conviction, the majority seems to
contend a district court could simply move one step back and use the statutory method for
classifying Kansas crimes to label the out-of-state conviction as felony or misdemeanor
for criminal history purposes. But that approach also relies on the Kansas classifications
as a default—the very reason the majority rejects Hernandez and Lackey as wrongly
decided. In short, K.S.A. 2015 Supp. 21-5102 governs in sorting or classifying Kansas
crimes, not those from other jurisdictions. See State v. Boos, 232 Kan. 864, ¶ 1, 659 P.2d
224 (1983) (In considering the version of K.S.A. 2015 Supp. 21-5102 predating the
recodification of the criminal code effective in 2011, the court recognized: "In Kansas a
crime is an act or omission defined by law and for which, upon conviction, a sentence of
imprisonment or a fine, or both imprisonment and a fine, is authorized. K.S.A. 21-
3105."); State v. Kershner, 15 Kan. App. 2d 17, 21-22, 801 P.2d 68 (1990) (applying
K.S.A. 21-3105).

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 Moreover, the majority's suggestion would also seem to resolve the ambiguity it
finds in K.S.A. 2015 Supp. 21-6811(e)(2)(A). I, therefore, don't see how the majority can
simultaneously claim K.S.A. 2015 Supp. 21-6811(e)(2)(A) to be ambiguous and claim
the classification scheme in K.S.A. 2015 Supp. 21-5102 renders my reading of K.S.A.
2015 Supp. 21-6811(e)(2)(A) erroneous. The two claims don't logically or legally
reconcile easily.

Having outlined what I think is the proper approach to determining how a crime
from another jurisdiction should be scored for criminal history purposes when that
jurisdiction doesn't use the terms felony and misdemeanor, I now perform that exercise
for Horselooking's conviction for residential burglary under the Kickapoo Nation's
criminal code. At the outset, the exercise necessarily requires a wide perspective.

The Kickapoo Nation's overarching philosophy of criminal justice differs
significantly from those systems, including Kansas', with antecedents in English
common-law and Anglo-Saxon jurisprudence. With respect to punishment, Kansas
identifies four primary policy objectives: deterrence, incapacitation, retribution, and
rehabilitation. See State v. Mossman, 294 Kan. 901, 911, 281 P.3d 153 (2012). Those
objectives similarly inform punishment in the federal criminal process and in states
across the country. See Graham v. Florida, 560 U.S. 48, 71, 130 S. Ct. 2011, 176 L. Ed.
2d 825 (2010). In marked contrast, the Kickapoo Nation has an explicit policy that
criminal sentences should "strive toward restitution and reconciliation of the offender and
the victim and Tribe." Kickapoo Nation Tribal Code, Title 11, Criminal Procedure § 403.
And "the paramount goal" of the criminal justice process includes "restor[ing] the
offender to harmony with" the victim and the Tribe. Kickapoo Nation Tribal Code, Title
11, Criminal Procedure § 403. To that end, sentences typically include restitution to the
victim and, when appropriate, to the Tribe. A convicted defendant may receive a
mitigated sentence if he or she "recognizes the wrong he [or she] has committed[] and

22
earnestly repents of such wrong." Kickapoo Nation Tribal Code, Title 11, Criminal
Procedure § 403(b).

Even more striking, perhaps, are the punitive sanctions that may be imposed under
the Kickapoo Nation's criminal code. Many offenses carry sentences of no more than 3
months' incarceration in the Tribal jail. Even the most serious crimes, including murder,
call for incarceration for no more than 6 months. See Kickapoo Nation Tribal Code, Title
10, Criminal Offenses § 211 (homicide in the first degree). Horselooking's burglary
conviction was punishable by incarceration for 3 to 6 months in jail. Kickapoo Nation
Tribal Code, Title 10, Criminal Offenses § 110.

As I indicated earlier, some crimes permit banishment as an additional
punishment; others do not. Banishment has no direct analog in the Kansas sentencing
scheme.

As the name suggests, banishment cuts convicted defendants off from the Tribe
and treats them as if they were dead during the prescribed period. Kickapoo Nation Tribal
Code, Title 11, Criminal Procedure § 404. Banishment reflects a traditional punishment
in the Kickapoo Nation and other tribes. Kickapoo Nation Tribal Code, Title 11, Criminal
Procedure § 404(a); Atwood, Tribal Jurisprudence and Cultural Meanings of the Family,
79 Neb. L. Rev. 577, 585-86 & n.31 (2000). Historically, banishment was an especially
harsh punishment—the person banished had to survive in an inhospitable and often
dangerous environment without the protection of the Tribe or any other organized
community. Although banishment still results in actual consequences, those
consequences no longer include a challenge to physical survival. Banishment, however,
remains sufficiently stigmatizing that a prosecutor must make an election early in a given
case to recommend it as a punishment, triggering additional procedural protections for
the accused. See Kickapoo Nation Tribal Code, Title 11, Criminal Procedure §§ 303(n),
304(b).

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 Again, by way of example, murder permits banishment for not less than 10 years
nor more than life. Kickapoo Nation Tribal Code, Title 10, Criminal Offenses § 211. A
person convicted of burglary may be banished for not less than 5 years nor more than 10
years. Kickapoo Nation Tribal Code, Title 10, Criminal Offenses § 110. The record in
this case does not indicate whether Horselooking was, in fact, banished, but imposition of
the penalty in a given case has no bearing on how the crime should be classified, a
determination properly based on potential punishment.

A review of the Kickapoo Nation codes governing substantive crimes and criminal
procedure demonstrates that burglary is considered a serious or major crime based on the
comparatively longer period of incarceration and the availability of banishment as a
penalty. Banishment marks the class or group of crimes in which it may be imposed as
significantly worse than the corresponding class or group in which it cannot.
Accordingly, the former group should be considered the equivalent of felonies in the
Kickapoo Nation's criminal justice system. In turn, Horselooking's conviction for
residential burglary in that system should be treated as a felony for criminal history
purposes under K.S.A. 2015 Supp. 21-6811(e). I would, therefore, affirm the district
court's ultimate determination of Horselooking's criminal history.

24