NOT DESIGNATED FOR PUBLICATION
Nos. 121,200
121,201
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RAUL REYES BELTRAN,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed December 18, 2020.
Sentences vacated, and cases remanded with directions.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Crystal French, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: This is a consolidated appeal by Raul Reyes Beltran of his
sentences in two separate cases. Because we hold the district court used an incorrect
criminal history score when it passed sentence, we vacate Beltran's sentences in both
cases and remand for resentencing.
In the first case, 18-CR-455, Beltran pleaded no contest to possession of
methamphetamine. At sentencing, the court set Beltran's criminal history score as B. That
1
score was based in part on three person misdemeanor convictions in municipal court. The
court had converted those three convictions into a single person felony when it decided
his criminal history score. The score also depended on Beltran's criminal threat
conviction in 18-CR-739, the other case consolidated in this appeal.
For his drug crime, with a criminal history score of B and a severity level 5 felony
conviction, Beltran's presumptive prison sentence under our sentencing guidelines was
32-34 months. Beltran requested—and the district court imposed—a dispositional
departure, so Beltran was released on 12 months' probation with an underlying 34-month
prison sentence that he would have to serve if he could not complete probation.
In the next case, case No. 18-CR-739, the State charged Beltran in the alternative
with criminal threat by either an intentional or reckless mental state. Beltran pleaded no
contest. Beltran's criminal history score was again based in part on the three person
misdemeanor convictions from municipal court.
With a criminal history score of C and a severity level 9 felony for the criminal
threat conviction, Beltran's presumptive sentence was 12 months' probation and a 12-
month prison sentence. The court imposed that sentence and ordered it to be served
consecutive to the sentence in 18-CR-455. This sentence was not a departure sentence.
Things did not go smoothly. In February 2019, the State moved to revoke Beltran's
probation in both cases. The State alleged Beltran:
(1) failed to obtain a substance abuse evaluation and follow its recommendations;
(2) disregarded previously imposed sanctions;
(3) failed to refrain from assaultive behavior, violence, or threats of violence;
(4) failed to submit to drug tests; and
(5) failed to refrain from possession or consuming alcohol.
2
The court took evidence on the two motions and revoked Beltran's probation in
both cases. It found that Beltran had:
• continued using drugs and alcohol while on probation;
• made a threat to other patients at detox treatment, though it did not make the
patients fear for their safety;
• made a separate violent, angry statement during detox treatment;
• been unsuccessfully discharged from detox treatment for noncompliance and
behavioral issues; and
• behavioral issues while meeting with his probation officer.
This appeal does not concern the court's findings, but it centers on what the court
did next. The court found that it had statutory authority to bypass intermediate sanctions
because Beltran's probation sentences resulted from dispositional departures. In both
cases, the district court revoked probation and imposed the prison sentences. By marking
certain boxes in the journal entries of the revocation hearing, the court stated that it was
revoking probation because of its concerns for public safety and for the offender's
welfare. The court concluded that Beltran was not amenable to probation.
In his appeal, Beltran raises different claims in the two cases. He first challenges
the revocation of his probation in 18-CR-739—the criminal threat case. He contends that
the district court erred by relying on the dispositional departure exception to bypass
intermediate sanctions because his presumptive guidelines sentence in that case was
probation. This means there was no departure. He then argues that the district court erred
by also relying on a public safety or offender welfare finding to bypass intermediate
sanctions because the court failed to make the particularized findings required under
K.S.A. 2018 Supp. 22-3716(c)(9)(A).
3
The State concedes that it was improper for the court to rely on the dispositional
departure exception, and it acknowledges that revocation was proper only if the court
made the particularized findings required by the statute.
After that, Beltran challenges his criminal history score in two ways. He first
argues that the State failed to prove that his three person misdemeanors from municipal
court could be used for criminal history purposes. He claims that there is no evidence he
had counsel when he was convicted of those crimes.
Beltran then argues that the district court erred by using his criminal threat
conviction in 18-CR-739 to calculate his criminal history score in 18-CR-455—the other
case in this appeal. This argument stems from the recent Kansas Supreme Court holding
that the "reckless disregard" portion of the criminal threat statute was unconstitutionally
vague. Thus, under K.S.A. 2019 Supp. 21-6810(d)(9), prior convictions of a crime that
have since been determined unconstitutional by an appellate court cannot be used for
calculating criminal history scores. See State v. Boettger, 310 Kan. 800, Syl. ¶ 3, 450
P.3d 805 (2019), cert denied 140 S. Ct. 1956 (2020).
Even though Beltran did not challenge the inclusion of his municipal court
misdemeanor convictions or his criminal threat conviction in his criminal history, a
defendant may raise a legal challenge to the classification of a prior conviction or
adjudication to lower a criminal history score for the first time on appeal under K.S.A.
2019 Supp. 22-3504(a). See State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015).
That law allows a court to "correct an illegal sentence at any time while the defendant is
serving such sentence." K.S.A. 2019 Supp. 22-3504(a). A challenge to a criminal history
calculation essentially raises a claim that the imposed sentence is illegal because it "does
not conform with the applicable statutory provision regarding the term of punishment
authorized for the current conviction." 301 Kan. at 1034.
4
We look first at the municipal court convictions as they were used to set Beltran's
criminal history score in both cases. We are mindful of the fact that when the record on
appeal lacks substantial evidence to support a district court's classification of a prior
conviction or the inclusion of a prior conviction in an offender's criminal history, a
remand is needed to allow the district court to determine the propriety of including the
prior conviction in the offender's criminal history. See State v. Ewing, 310 Kan. 348, 359-
60, 446 P.3d 463 (2019).
Beltran asks us to follow the ruling in State v. Obregon, 309 Kan. 1267, Syl. ¶ 4,
444 P.3d 331 (2019). Obregon challenged the district court's classification of a prior
Florida battery conviction as a person crime. When Obregon was decided, to be scored as
a person crime, a prior out-of-state conviction must have elements identical to or
narrower than a Kansas person crime according to State v. Wetrich, 307 Kan. 552, 562,
412 P.3d 984 (2018).
But the Florida statute contained two other ways to commit a battery, only one of
which would be scored as a person offense in Kansas. The PSI report, the only item in the
record establishing the conviction as part of Obregon's criminal history, did not show
which version of the offense the defendant had committed. Thus, our Supreme Court held
that the record did not support the district court's classification as a person crime. The
court remanded the matter for resentencing so that the district court could determine the
appropriate classification. The court noted that the State would have the burden to prove
Obregon's criminal history by a preponderance of the evidence at that hearing. Obregon,
309 Kan. at 1275-76.
This court has since applied the Obregon ruling when a defendant challenges the
inclusion, rather than the classification, of a prior offense for criminal history purposes.
See State v. Anderson, No. 121,640, 2020 WL 6371059, at *5 (Kan. App. 2020);
(unpublished opinion); State v. McKoy, No. 121,636, 2020 WL 5739730, at *2 (Kan.
5
App. 2020) (unpublished opinion); State v. Arnold, No.121,543, 2020 WL 5740900, at *2
(Kan. App. 2020) (unpublished opinion).
The defendants in those cases challenged the inclusion of prior criminal threat
convictions in their criminal history scores because the Kansas Supreme Court had held
in Boettger that the "reckless disregard" portion of the criminal threat statute was
unconstitutional. The defendants relied on K.S.A. 2019 Supp 21-6810(d)(9), which
prohibits a district court from using a prior conviction "that has since been determined
unconstitutional by an appellate court" to calculate criminal history. The PSI report in
those cases was the only item in the record establishing the criminal threat conviction as
part of the defendants' criminal history, and it did not show whether the conviction was
for reckless criminal threat (which could not be used for criminal history purposes) or
intentional criminal threat (which could).
The panels applied Obregon in each case, holding that the record did not support
the inclusion of the prior conviction, and remanded to the district court for the State to
meet its burden of proving whether each criminal threat conviction was properly included
in the criminal history score. Anderson, 2020 WL 6371059 at *4-5; McKoy, 2020 WL
5739730 at *2-3; Arnold, 2020 WL 5740900 at *2-3.
But Beltran focuses on his right to counsel. He argues that when the right to
counsel attaches to a municipal court proceeding, unless the defendant was represented
by counsel or waived the right, a conviction in the case is unconstitutional and cannot be
used for criminal history purposes. See State v. Long, 43 Kan. App. 2d 328, 337, 225
P.3d 754 (2010) (applying State v. Youngblood, 288 Kan. 659, 206 P.3d 518 [2009]). The
PSI report here is the only item in the record establishing Beltran's municipal court
convictions, and it does not show whether (1) he was represented by counsel for that
conviction, (2) he waived the right to counsel, or (3) the right to counsel did not attach
because he faced only a fine, not imprisonment.
6
Beltran asks us to apply the Obregon ruling and hold that the record does not
support the inclusion of these convictions in his criminal history score. Thus, he asks this
court to remand for resentencing, thus requiring the State to meet its burden of proving
whether the convictions were properly included in his criminal history score. After all,
the State bears the burden of proving a defendant's criminal history by a preponderance
of the evidence. Obregon, 309 Kan. 1267, Syl. ¶ 4.
We are persuaded to grant Beltran relief on this point and vacate his sentences in
both cases. In Obregon and in the criminal threat cases, a prior conviction could not be
either classified as a person crime or included in a criminal history score unless there was
some proof in the record of certain facts. In Obregon, there needed to be proof of whether
the prior out-of-state conviction had elements identical to or narrower than a Kansas
person crime. In the criminal threat cases, there needed to be proof of whether the
defendant was convicted of intentional, not reckless, criminal threat. And here, there
needed to be proof of whether Beltran's right to counsel in his municipal court
misdemeanor cases was not violated.
In Obregon and the criminal threat cases, the PSI report did not show whether that
condition was met, so the State had not met its burden of establishing criminal history by
a preponderance of the evidence. The same is true here. Beltran's PSI report does not
show whether his right to counsel was violated, so the State did not meet its burden of
establishing criminal history. Based on that, the appropriate action is to vacate Beltran's
sentence and remand for resentencing; as in Obregon, at resentencing, the State would
have the burden to prove that the misdemeanor convictions are properly included by a
preponderance of the evidence. See Obregon, 309 Kan. at 1275-76.
The State offers two points in opposition. First, it argues that this issue is not
properly before us because Beltran raised it for the first time on appeal and did not object
to the inclusion of these convictions in the district court, despite having a chance to do so
7
twice. But a defendant may raise a challenge to the legal significance of a prior
conviction to lower a criminal history score for the first time on appeal under K.S.A.
2019 Supp. 22-3504(a). See Dickey, 301 Kan. at 1034. We note also that Beltran does not
challenge the existence of his municipal court convictions—just their legal significance
for calculating his criminal history score.
For its second argument, the State contends that Beltran has not met his burden of
designating a record on appeal showing the error he complains of because he has
furnished no evidence suggesting that his right to counsel was violated in the municipal
court cases. This is an argument rejected by our Supreme Court, which has said that the
"basic premise" of this argument is "flawed" because it is the State, not the defendant,
that has the burden to establish criminal history. Ewing, 310 Kan. at 359. Any
deficiencies in this record are the responsibility of the State, not Beltran's.
Moving on, our review of the record convinces us that the State did not present
sufficient evidence that Beltran's criminal threat conviction was intentional and not the
unpermitted reckless threat voided by our Supreme Court.
In his supplemental brief, Beltran challenges the inclusion of his criminal threat
conviction in 18-CR-739 for calculating his criminal history score in 18-CR-455—the
drug conviction. As we pointed out, the Supreme Court held that the "reckless disregard"
portion of the criminal threat statute was unconstitutional, and K.S.A. 2019 Supp. 21-
6810(d)(9) prohibits a district court from using a prior conviction that has since been
determined unconstitutional by an appellate court to calculate criminal history. In
Beltran's view, the record does not show whether he was found guilty of reckless criminal
threat or intentional criminal threat. Thus, the State failed to carry its burden under
Obregon and a remand is therefore required.
8
Since we are vacating the sentences in both cases and remanding for resentencing,
we cannot speculate what evidence will be presented by the State at the new sentencing
hearing. And we will not offer an advisory opinion on this point. Obviously, the State at
that hearing will have to present evidence that Beltran's criminal threat conviction was
intentional and not reckless if it intends to use it to enhance Beltran's criminal history
score.
We need not address Beltran's complaints about the sentencing court's lack of
sufficient findings to bypass intermediate sanctions since we are vacating that sentence as
well. The issue is moot.
We vacate Beltran's sentences in both cases and remand for resentencing.
9