NOT DESIGNATED FOR PUBLICATION
No. 123,520
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DEVONTAIR ALEXANDER JACKSON,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; DAVID B. DEBENHAM, judge. Opinion filed December 17,
2021. Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and ISHERWOOD, JJ.
PER CURIAM: Devontair Alexander Jackson appeals the trial court's calculation of
his criminal history score. Jackson had two prior person felonies, either of which would
require Jackson to register under the Kansas Offender Registration Act (KORA). When
the trial court sentenced Jackson for failing to register under KORA, it counted one
felony as an element of the offense and one felony as criminal history. Jackson argues
that the trial court erred because the two previous felonies were part of the same act, and
neither felony should count toward his criminal history. Because the trial court calculated
Jackson's criminal history score correctly, we affirm.
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FACTS
In 2013, Jackson was convicted of aggravated battery, in violation of K.S.A. 2013
Supp. 21-5413, and attempted aggravated robbery, in violation of K.S.A. 2013 Supp. 21-
5301 and K.S.A. 2013 Supp. 21-5420. Either of these crimes would require him to
register.
In 2018, the State charged Jackson with failing to register under KORA, in
violation of K.S.A. 2018 Supp. 22-4903.
In 2020, Jackson pleaded guilty to failing to register under KORA and the trial
court scheduled a sentencing hearing.
Before sentencing, Jackson objected to his criminal history score of D, arguing
that a score of I was correct. Jackson noted that the felony creating the duty to register
under KORA is an element of the offense of failing to register. Because that previous
conviction is an element of the current crime, it cannot be included in the offender's
criminal history score. Jackson also noted that KORA provides that "'convictions or
adjudications which result from or are connected with the same act, or result from crimes
committed at the same time, shall be counted for the purpose of this section as one
conviction or adjudication[.]' K.S.A. 22-4902(g)." Jackson referred to this as "the 'one
conviction' rule." Combining these rules together, Jackson argued that KORA counts
crimes committed at the same time as one crime and this one crime cannot count toward
his criminal history score.
At sentencing, the State agreed with Jackson's argument. The trial court did not
agree. The trial court continued sentencing to allow the State to respond to Jackson's
motion to amend his criminal history score.
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The State did not respond because it agreed with Jackson, maintaining the position
that both crimes in his 2013 case could not count toward his criminal history score. The
trial court disagreed. It ruled that one of the 2013 crimes could not count as criminal
history because it was an element of the registration offense, but the other crime in the
2013 case counted toward Jackson's criminal history score. The trial court ruled that
Jackson had a D criminal history score. It sentenced Jackson to 24 months in prison,
followed by 24 months' postrelease supervision.
Jackson timely appeals.
ANALYSIS
Jackson argues that the trial court erred by counting his two crimes separately
rather than classify them as one conviction supporting a KORA violation. The State
argues that KORA's registration requirement is separate from criminal history score
calculations and the one conviction rule does not apply. Because the trial court correctly
excluded one crime requiring registration from Jackson's criminal history score, we
affirm.
Jackson challenges the trial court's interpretation of KORA and the revised Kansas
Sentencing Guidelines Act (KSGA). Statutory interpretation presents a question of law
over which appellate courts have unlimited review. State v. Alvarez, 309 Kan. 203, 205,
432 P.3d 1015 (2019).
Jackson argues that the trial court erred in including one of his convictions in his
criminal history score because both convictions are an element of the crime of failure to
register under KORA. Jackson points to this court's holding in State v. Pottoroff, 32 Kan.
App. 2d 1161, 96 P.3d 280 (2004). The Pottoroff court held that "the conviction that
created the need for registration under the scheme is necessarily an element of the offense
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of failure to register and cannot be counted in determining criminal history score." 32
Kan. App. 2d at 1166-67. But Pottoroff only committed one crime requiring registration
and that crime could not count toward his criminal history score because it was an
element of failing to register. Here, Jackson committed two crimes requiring registration
and the trial court ruled that one of them could not count toward his criminal history
because it was an element of failing to register. But the trial court held that the other
crime was part of Jackson's criminal history.
Jackson acknowledges that this court has upheld this type of criminal history score
calculation in State v. Deist, 44 Kan. App. 2d 655, 239 P.3d 896 (2010). Tharin Deist had
two prior convictions for aggravated indecent liberties with a child. When Deist pleaded
no contest to failure to register as a sex offender, the trial court did not use one of his
previous convictions in his criminal history score because it served as an element of his
failure to register. But the trial court included his other prior conviction in his criminal
history score because only one conviction created a duty to register, leaving the other
conviction as part of his criminal history. This court affirmed the trial court's criminal
history score calculation. 44 Kan. App. 2d at 660. Jackson distinguishes his case from
Deist. Jackson argues that his previous crimes were part of a single act or event and
therefore both crimes should be excluded from his criminal history score.
Jackson's argument is unpersuasive because he takes a concept stated in KORA
and tries to import it into the KSGA. He correctly states that KORA combines more than
one crime if the crimes are all part of the same act or event. But he incorrectly assumes
that this part of KORA would impact his criminal history score under the KSGA.
KORA lists offenses which require an offender to register. K.S.A. 2018 Supp. 22-
4906. KORA applies different registration requirements depending on the number of
convictions of the listed offenses. K.S.A. 2018 Supp. 22-4906(a)(1) requires that
offenders register for 15 years if they have been convicted of one of the listed offenses.
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K.S.A. 2018 Supp. 22-4906(c) requires that offenders convicted of a second such offense
must instead register for life. It is readily apparent that the Legislature intended offenders
convicted of two such offenses to register for life, but not offenders convicted of a single
offense.
The Legislature also makes plain its intent to require two separate acts, not just
offenses, for lifetime registration. K.S.A. 2018 Supp. 22-4902(g) states: "Convictions or
adjudications which result from or are connected with the same act, or result from crimes
committed at the same time, shall be counted for the purpose of this section as one
conviction or adjudication." Because of this subsection, Jackson's convictions for
aggravated battery and attempted aggravated robbery are part of the same act and he must
register under KORA for 15 years. Without K.S.A. 2018 Supp. 22-4902(g), Jackson's two
convictions for crimes requiring registration could lead to mandatory lifetime
registration. But the phrase "for the purpose of this section" shows that K.S.A. 2018
Supp. 22-4902(g) applies within KORA.
Jackson argues that this concept within KORA, treating two convictions as one if
they are part of a single act, should also apply to his criminal history score. He correctly
argues that Deist and the cases following Deist did not consider the one conviction rule.
See State v. Turner, No. 119,211, 2019 WL 2237242 (Kan. App.) (unpublished opinion),
rev. denied 310 Kan. 1070 (2019); State v. Henderson, No. 114,477, 2016 WL 4498853
(Kan. App. 2016) (unpublished opinion); State v. Haskell, No. 107,592, 2012 WL
5519220 (Kan. App. 2012) (unpublished opinion). Similarly, the State provides no
support for its position that the one conviction rule cannot apply to criminal history
scores. Neither our Supreme Court nor earlier opinions of this court have provided
guidance directly on point. But Jackson argues that a specific statute controls over a
general statute, characterizing the KSGA as general and KORA as specific.
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The KSGA requires the trial court to consider each conviction. "Except as
otherwise provided, all convictions, whether sentenced consecutively or concurrently,
shall be counted separately in the offender's criminal history." K.S.A. 2018 Supp. 21-
6810(c). "All prior adult felony convictions, including expungements, will be considered
and scored." K.S.A. 2018 Supp. 21-6810(d)(2).
Jackson contends that the KSGA's requirement to count all convictions is general,
but the KORA requirement to lump crimes together if they are connected to a single act is
specific. But neither statute refers to the other. The plain language of K.S.A. 2018 Supp.
22-4902(g) instructs courts to count convictions together if they are connected with the
same act only for purposes of registration, not for calculating criminal history scores.
K.S.A. 2018 Supp. 22-4902(g) has no language related to criminal history scores.
Jackson's argument that KORA is more specific than the KSGA does not reflect the
statutory language. The KSGA and KORA are equally specific but apply to different
aspects of criminal offenses and are nonoverlapping magisteria. The trial court correctly
declined to read into the statute language which is not present.
Further, Jackson fails to distinguish his own case from Deist. He states that the
crimes in his 2013 case arose out of the same event and occurred at the same time.
Although the State does not dispute this assertion, nothing in the record allows us to
confirm that his two convictions arose out of the same event. The presentence
investigation (PSI) report simply lists them under the same case number. The party
claiming an error occurred has the burden of designating a record that affirmatively
shows prejudicial error. Without such a record, an appellate court presumes the action of
the trial court was proper. State v. Simmons, 307 Kan. 38, 43, 405 P.3d 1190 (2017); see
also State v. Miller, 308 Kan. 1119, 1157, 427 P.3d 907 (2018) ("The burden is on the
party making a claim of error to designate facts in the record to support that claim;
without such a record, the claim of error fails.").
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But if we were to accept Jackson's assertion as true, it would still not distinguish
his case from Deist. In Deist, the PSI report listed the aggravated indecent liberties with a
child offenses as entry 1 (not scored) and entry 2 (scored) in case No. 97CR596 for
criminal history. 44 Kan. App. 2d at 655-56. Nothing in Deist clarifies whether these two
convictions were connected to the same act or occurred at approximately the same time.
Without citation, Jackson seems to assume that Deist involved two separate acts,
distinguishing it from Jackson's case of a single act involving two crimes. But Jackson
does not adequately show that the two cases differ or that their outcomes should differ. In
both cases, two convictions are listed under the same case number, with nothing in the
record showing whether the crimes occurred at the same time or as part of the same act.
We conclude that the trial court here correctly calculated the criminal history score using
the same method as the trial court did in Deist.
For the preceding reasons, we affirm.
Affirmed.
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