No. 122,680
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ROBERT GLENN TERRELL,
Appellant.
SYLLABUS BY THE COURT
1.
Appellate courts exercise unlimited review on whether a sentence is illegal within
the meaning of K.S.A. 22-3504 because it is a question of law.
2.
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.
3.
Courts must construe statutes to avoid unreasonable or absurd results and presume
the Legislature does not intend to enact meaningless legislation.
4.
Appellate courts presume the Legislature acted with full knowledge of existing
law and statutory subject matter, including judicial opinions interpreting Kansas statutes.
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5.
The reasonable and sensible application of the revised Kansas Sentencing
Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq., is for post-KSGA Kansas
convictions to be classified based on the classification in effect at the time of the prior
conviction.
Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed April 9, 2021.
Sentence vacated and case remanded with directions.
Kristen B. Patty, of Wichita, for appellant, and Robert Glenn Terrell, appellant pro se.
Ian T. Otte, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., MALONE, J., and MCANANY, S.J.
SCHROEDER, J.: The sentencing scheme in Kansas is controlled by the revised
Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq. Robert
Glenn Terrell appeals the district court's denial of his motion to correct an illegal
sentence, claiming the district court erred by reclassifying his 2004 conviction for failure
to register under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et
seq.—defined in 2004 as a nonperson felony under the KSGA—from a nonperson felony
to a person felony. After careful review of the record and the KSGA, we find the district
court erred in reclassifying Terrell's 2004 KORA violation conviction from a nonperson
felony to a person felony for purposes of determining his criminal history. Therefore, we
vacate the sentence and remand with directions.
FACTS
In November 2018, Terrell pled guilty to one count of aggravated escape from
custody. Prior to sentencing, Terrell filed a motion for downward durational departure. At
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sentencing, the district court reclassified his 2004 KORA violation conviction from a
nonperson felony to a person felony based on the statutory change in 2016 which made a
KORA violation a person felony if the crime requiring the offender to register was a
person felony. Terrell was required to register based on a 2002 rape conviction—a person
felony—so the district court scored his 2004 KORA violation conviction as a person
felony. This scoring resulted in Terrell's criminal history score moving from C to B.
Terrell objected to the inclusion of his 2004 conviction for violation of KORA in
his criminal history score as a person felony. Terrell did not dispute the existence of the
conviction; rather, he argued it should be scored as a nonperson felony because at the
time of the prior conviction it was classified as such. See K.S.A. 2004 Supp. 22-4903.
The district court overruled Terrell's objection to his criminal history score but granted
his motion for downward durational departure, sentencing him to 40 months'
imprisonment with 24 months' postrelease supervision.
Terrell initially filed a notice of appeal but withdrew it. He then filed several
motions to correct an illegal sentence, which the district court denied. In denying his
motions to correct illegal sentence, the district court held Terrell's 2004 KORA violation
conviction was properly scored as a person felony under State v. Keel, 302 Kan. 560, 357
P.3d 251 (2015). Terrell now appeals.
ANALYSIS
Standard of Review
We exercise unlimited review on whether a sentence is illegal within the meaning
of K.S.A. 22-3504 because it is a question of law. State v. Lee, 304 Kan. 416, 417, 372
P.3d 415 (2016). Interpretation of a sentencing statute is likewise a question of law
subject to unlimited review. State v. Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018).
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"'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 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 does not speculate as to the legislative intent behind
it and will not read into the statute something not readily found in it. Where there is no
ambiguity, the court need not resort to statutory construction. Only if the statute's
language or text is unclear or ambiguous does the court use canons of construction or
legislative history or other background considerations to construe the legislature's intent.'
[Citations omitted." State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016).
"[W]hen construing statutes to determine legislative intent, appellate courts must consider
various provisions of an act in pari materia, with a view toward reconciling and bringing
the provisions into workable harmony if possible. [Citation omitted.]" Keel, 302 Kan. at
573-74.
Courts must construe statutes "to avoid absurd or unreasonable results." State v.
Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014). We presume the Legislature acted
with full knowledge of existing law and statutory subject matter, including judicial
opinions interpreting Kansas statutes. State v. Kershaw, 302 Kan. 772, 782, 359 P.3d 52
(2015); see State v. Quested, 302 Kan. 262, 279, 352 P.3d 553 (2015) (acquiescence to
appellate decisions may indicate legislative intent). We further presume the Legislature
does not intend to enact meaningless legislation; therefore, by amending statutory
language, the Legislature intends to alter or amend existing law. See State v. Snellings,
294 Kan. 149, 157, 273 P.3d 739 (2012).
As a general rule, criminal statutes are strictly construed in favor of the accused.
That rule is constrained, however, by the rule that interpretation of a statute must be
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reasonable and sensible to effect the legislative design and intent of the law. See Barlow,
303 Kan. at 813. The rule of lenity arises only when there is any reasonable doubt of the
statute's meaning. State v. Williams, 303 Kan. 750, 760-61, 368 P.3d 1065 (2016).
Discussion
Terrell argues the district court erred in scoring his 2004 KORA violation
conviction as a person felony. At the time of Terrell's 2004 KORA violation, K.S.A. 2004
Supp. 22-4903 provided: "Any person who is required to register as provided in this act
who violates any of the provisions of this act . . . is guilty of a severity level 10,
nonperson felony." The statute was amended in 2016 to read that a KORA violation
"shall be designated as a person or nonperson crime in accordance with the designation
assigned to the underlying crime for which the offender is required to be registered under
the Kansas offender registration act." K.S.A. 2016 Supp. 22- 4903(c)(1). Because Terrell
was required to register under KORA based on a prior rape conviction—a person felony
under K.S.A. 21-3502(c)—the district court scored his 2004 KORA violation conviction
as a person felony.
The State asserts, without discussion or elaboration, the district court properly
scored Terrell's KORA violation conviction as a person felony based on the reasoning in
Keel; State v. Lyon, 58 Kan. App. 2d 474, 471 P.3d 716, rev. denied 312 Kan. ___
(November 24, 2020); and State v. Patrick, No. 116,660, 2018 WL 4373053 (Kan. App.
2018) (unpublished opinion), rev. denied 309 Kan. 1352 (2019). The State's reliance on
these cases is misplaced.
In Keel, the issue was how to classify pre-KSGA Kansas felony convictions not
designated as either person or nonperson crimes when calculating a criminal history score
for sentencing of post-KSGA crimes. 302 Kan. at 571. In its discussion, the Keel court
noted many pre-KSGA criminal offenses continued to exist under the same statutes after
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the enactment of the KSGA, the pertinent distinction being the post-KSGA classification
of those offenses as person or nonperson crimes. 302 Kan. at 579-80. Keel concluded,
based on the language in K.S.A. 21-4710(d)(9)—now K.S.A. 2020 Supp. 21-6810(d)(8):
"The clear implication is that if the statute has not been repealed, then the crime is scored
using the classification in the statute at the time of the current crime of conviction." 302
Kan. at 580.
In Patrick, the issue was whether Patrick's 1999 conviction for driving as a
habitual violator—then a nonperson felony—should have been scored as a nonperson
misdemeanor based on the offense having changed to a nonperson misdemeanor under
the 2015 version of the statute. See K.S.A. 2015 Supp. 8-287. On appeal, the State agreed
it should have been classified as a nonperson misdemeanor. The Patrick panel agreed,
relying on Keel's discussion of the language in K.S.A. 21-4710(d)(9). 2018 WL 4373053,
at *11.
Patrick is easily distinguishable insofar as there was no issue over the
classification of the prior post-KSGA offense as person or nonperson; it was a nonperson
offense in both 1999 and 2015. The only distinction was whether the offense was a felony
or misdemeanor. 2018 WL 4373053, at *11. Patrick did not raise the issue in his petition
for review, and our Supreme Court denied his petition, which raised other issues.
In Lyon, the issue was whether Lyon's 2010 aggravated burglary conviction should
still be scored as a person felony because the elements of the 2010 conviction were
broader than the language of the 2017 version of the statute. Compare K.S.A. 2010 Supp.
21-3716 to K.S.A. 2017 Supp. 21-5807. Essentially, Lyon was trying to use the language
of K.S.A. 2017 Supp. 21-6810(d)(8) as a means of applying the identical-to-or-narrower-
than elements-based comparison in State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018),
to post-KSGA in-state felony convictions. The Lyon panel accepted the reasoning of the
Patrick panel, but Lyon's discussion of Patrick was largely tangential as the panel
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soundly concluded Lyon was not entitled to relief because his prior aggravated burglary
offense was a person felony both at the time of the prior conviction and the date of the
current crime of conviction. 58 Kan. App. 2d at 492-93. Lyon is distinguishable because
aggravated burglary was always a person felony as applied to Lyon; thus, no comparison
was warranted.
Although Lyon raised the issue in his petition for review, he framed it as a
question of first impression—whether Wetrich's identical-to-or-narrower-than approach
applied to the scoring of in-state post-KSGA felony convictions. Our Supreme Court
denied review. We discern no guidance from our Supreme Court's denial of review in
Patrick and Lyon.
Terrell asserts the principle of statutory construction known as expressio unius est
exclusio alterius, i.e., the inclusion of one thing implies the exclusion of another, reflects
a legislative intent to exclude post-KSGA in-state convictions from a comparability
analysis. See City of Dodge City v. Webb, 305 Kan. 351, 361, 381 P.3d 464 (2016)
(Johnson, J., dissenting). Terrell's argument is persuasive. He correctly points out the
Legislature has provided four distinct times where the KSGA specifically directs a
sentencing court to compare the prior conviction to the comparable in-state offense as of
the date of the current crime of conviction in order to classify it as a person or nonperson
offense:
• pre-KSGA Kansas adult felony convictions under K.S.A. 2020 Supp. 21-
6810(d)(2);
• pre-KSGA juvenile felony adjudications under K.S.A. 2020 Supp. 21-
6810(d)(3)(B);
• pre-KSGA Kansas adult misdemeanor convictions under K.S.A. 2020 Supp.
21-6810(d)(6); and
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• prior out-of-state convictions and juvenile adjudications under K.S.A. 2020
Supp. 21-6811(e)(3).
However, none of those directives apply here. We do not have to do a comparative
analysis on Terrell's crime since it is the same—a KORA violation—with the only
change being the reclassification in 2016 from a nonperson felony to a person felony if
the underlying conviction requiring registration was a person felony.
Here, we are tasked with answering how to score a post-KSGA conviction from
2004—which was designated as a nonperson felony but which the Legislature changed in
2016 to a person felony if the underlying crime requiring the person to register was a
person felony—for a current crime of conviction. In other words, do we apply the
classification at the time of the prior conviction or the classification as of the date of the
current crime of conviction? The KSGA is silent as to how a sentencing court should
classify a post-KSGA in-state conviction or adjudication if the person/nonperson
designation was modified after July 1, 1993.
Under K.S.A. 2020 Supp. 21-6810(d)(8): "Prior convictions of a crime defined by
a statute that has since been repealed shall be scored using the classification assigned at
the time of such conviction." (Emphasis added.) We observe no reason why this same
directive should not be used for a change in a crime's designation from nonperson to
person after the crime was committed. We recognize the instruction from Keel is
analogous but not controlling because Keel addressed the scoring of pre-KSGA
convictions, not changes in how a post-KSGA conviction should be scored if the
person/nonperson designation for scoring purposes is modified from a nonperson to a
person designation after the prior conviction. We believe Keel's conclusion is dicta as it
applies to scoring post-KSGA convictions and should not be applied to the facts of this
case.
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However, unlike unclassified offenses, convictions under subsequently repealed
statutes are not automatically classified as nonperson offenses, nor are they excluded
from the offender's criminal history. "Unless otherwise provided by law, unclassified
felonies and misdemeanors shall be considered and scored as nonperson crimes for the
purpose of determining criminal history." K.S.A. 2020 Supp. 21-6810(d)(7). "Prior
convictions of a crime defined by a statute that has since been determined
unconstitutional by an appellate court shall not be used for criminal history scoring
purposes." K.S.A. 2020 Supp. 21-6810(d)(9). Looking at K.S.A. 2020 Supp. 21-
6810(d)(7)-(9) as a whole, subsection (d)(8) cannot be logically construed as implicitly
providing for prospective reclassification of post-KSGA convictions under still-existing
statutes. Rather, it simply precludes blanket classification or exclusion of convictions
under subsequently repealed statutes.
Our concern with the analysis in Patrick and its adoption in Lyon is that it
effectively takes in isolation Keel's discussion of a single statutory provision within a
much broader in pari materia analysis. But a court should not view statutory provisions in
isolation. See Keel, 302 Kan. at 573-74. And Keel's analysis of the complex interplay
between the prior statutory provisions no longer appears necessary in light of subsequent
legislative amendments.
The explicit statutory directions in K.S.A. 2020 Supp. 21-6810(d)(2), (d)(3)(B),
and (d)(6), and K.S.A. 2020 Supp. 21-6811(e)(3) refer only to pre-KSGA in-state and out-
of-state convictions or adjudications. The common thread of such convictions is they did
not occur under the KSGA and, as such, had no Kansas person or nonperson
classification. However, the post-KSGA Kansas Criminal Code generally classifies
criminal offenses as person or nonperson. See K.S.A. 2020 Supp. 21-5101 et seq. While
there is an obvious need to compare out-of-state convictions and pre-KSGA in-state
convictions to current Kansas statutes for classification purposes, there is no such need
for post-KSGA in-state convictions; the Kansas Criminal Code generally provides the
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classification at the time of the crime and related conviction. It seems tenuous at best to
believe the Legislature, having provided clear, explicit guidance for pre-KSGA offenses
under K.S.A. 2020 Supp. 21-6810(d)(2), (d)(3)(B), and (d)(6), and K.S.A. 2020 Supp.
21-6811(e)(3), would only implicitly provide for classification of post-KSGA offenses
under K.S.A. 2020 Supp. 21-6810(d)(8).
But, if there is any reasonable doubt as to the meaning of K.S.A. 2020 Supp. 21-
6810(d)(8), it must be strictly construed in Terrell's favor. The rule of lenity, however, is
subordinate to reasonably and sensibly interpreting statutes consistent with the
Legislature's apparent intent and purpose. See Barlow, 303 Kan. at 813; Williams, 303
Kan. at 760. When read as a whole, K.S.A. 2020 Supp. 21-6810(d)(2), (d)(3)(B), (d)(6),
(d)(7)-(9), and K.S.A. 2020 Supp. 21-6811(e)(3) reflect a legislative intent to classify
pre-KSGA in-state and out-of-state convictions and adjudications by comparing the
elements of the prior offense with the comparable Kansas offense as of the date of the
current crime of conviction. The reasonable and sensible application of the KSGA is for
post-KSGA Kansas convictions to be classified based on the classification in effect at the
time of the prior crime of conviction.
A reasonable interpretation of K.S.A. 2020 Supp. 21-6810(d)(8) reflects a
legislative intent to classify in-state convictions under subsequently repealed statutes as
person or nonperson offenses based on the classification in effect at the time of the prior
conviction. But we find nothing in the KSGA reflecting a legislative intent to reclassify
prior post-KSGA convictions based on subsequent amendments to existing statutes.
Compare K.S.A. 2020 Supp. 21-6810(d)(8) with K.S.A. 2020 Supp. 21-6810(d)(2),
(d)(3)(B), (d)(6), and K.S.A. 2020 Supp. 21-6811(e)(3).
In 2004, when Terrell was convicted of a KORA violation, the intent of the
Legislature was for that violation to be classified as a nonperson felony. The district court
erred and imposed an illegal sentence when it reclassified Terrell's 2004 KORA violation
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conviction from a nonperson felony to a person felony for purposes of determining his
criminal history score at sentencing in 2018. We therefore vacate Terrell's sentence and
remand to the district court for resentencing.
Sentence vacated and case remanded with directions.
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