NOT DESIGNATED FOR PUBLICATION
No. 123,215
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JONATHAN S. NELSON,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed January 14,
2022. Affirmed in part, vacated in part, and remanded with directions.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Jon Simpson, assistant district attorney, Suzanne Valdez, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.
PER CURIAM: Jonathan S. Nelson appeals, asserting that he has received an illegal
sentence. Nelson raises three issues. First, he claims the district court erred in imposing a
36-month extended term of probation. Second, he challenges his criminal history score
based on inclusion of a driving under the influence (DUI) conviction from South Dakota.
Third, Nelson challenges the constitutionality of the revised Kansas Sentencing
Guidelines Act (KSGA).
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Upon our review, we hold that the extended probation that was ordered pursuant to
K.S.A. 2020 Supp. 21-6608(c)(5) is an illegal sentence. That probationary sentence is
vacated, and the case is remanded with directions for the district court to resentence
Nelson to probation under the correct legal standard. Second, we find no reversible error
in the calculation of Nelson's criminal history score. Finally, we hold the KSGA does not
violate section 5 of the Kansas Constitution Bill of Rights.
Accordingly, we affirm in part, vacate in part, and the case is remanded with
directions to resentence Nelson to probation under the correct legal standard.
FACTUAL AND PROCEDURAL BACKGROUND
In accordance with a plea agreement, Nelson pled no contest to aggravated battery
in violation of K.S.A. 2014 Supp. 21-5413(b)(1)(C), criminal restraint in violation of
K.S.A. 2014 Supp. 21-5411, and lewd and lascivious behavior in violation of K.S.A.
2014 Supp. 21-5513(a)(2). In return for Nelson's no-contest pleas, the parties agreed to
jointly recommend the district court impose a controlling 44-month sentence but grant an
extended 36-month term of supervised probation.
At the plea hearing, the district court established that Nelson had read and
understood the terms of the plea agreement. Upon accepting Nelson's no-contest pleas,
the district court ordered a presentence investigation (PSI) report, which determined that
Nelson had a D criminal history score. At sentencing, Nelson did not object to his
criminal history or challenge the accuracy of the PSI report. The district court found
Nelson's criminal history score was D, and based on the agreement of the parties,
sentenced him to a controlling sentence of 44 months' imprisonment. Additionally, the
district court granted Nelson an extended term of probation for 36 months.
2
In granting probation, the district court stated that it was "convinced" that Nelson
had "no sense whatsoever of the impact of his actions." The district court expressed its
"concern that the safety of the public is in jeopardy if [it did not] accept the agreement of
the parties and impose a three-year term of probation" instead of the 24-month
presumptive term. The district court also noted it was concerned over Nelson's welfare
and found "he needs an external influence upon him in order to conform himself to living
in ordered society in a way that minimizes the risk to society." Based on the safety of the
public and the offender's welfare, the district court determined there was a basis under
K.S.A. 2020 Supp. 21-6608(c)(5) to impose the three-year term of extended probation as
provided in the plea agreement.
Nelson appeals.
EXTENSION OF PROBATION UNDER K.S.A. 2020 SUPP. 21-6608(c)(5)
On appeal, Nelson contends that "[t]he district court erred in imposing a 36-month
term of probation, creating an illegal sentence." He makes two complaints. First, he
argues the district court erred in extending his probation under K.S.A. 2020 Supp. 21-
6608(c)(5) because that statutory provision does not apply to the severity level of his
crime of conviction. Second, while acknowledging that the district court nevertheless had
jurisdiction to extend the probation term pursuant to a different statutory provision—
K.S.A. 2020 Supp. 21-6608(c)(1)(B)—Nelson argues that his extended probation term
was an "upward durational departure" that violated his jury trial rights under Apprendi v.
New Jersey, 530 U.S. 466, 475-76, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In brief,
Nelson claims he was sentenced illegally based on statutory and constitutional grounds.
For its part, the State argues that the district court had "valid and unchallenged
reasons" to impose the extended probation term despite relying on an inapplicable statute.
The State also asserts that Nelson's constitutional challenge does not permit review for
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the first time on appeal, but even if considered on its merits, his extended probation term
does not violate the Sixth Amendment to the United States Constitution. We will review
Nelson's two arguments separately.
At the outset, we consider our standard of review. Whether a sentence is illegal is
a question of law over which appellate courts have unlimited review. State v. Sartin, 310
Kan. 367, 369, 446 P.3d 1068 (2019). To the extent this issue requires statutory
interpretation, that is also a question of law over which we have unlimited review. State
v. Bryant, 310 Kan. 920, 921, 453 P.3d 279 (2019).
As Nelson concedes, he is challenging his probation term for the first time on
appeal. Generally, issues not raised before the district court may not be raised on appeal.
See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). However, because Nelson is
challenging his sentence as being illegal, he contends this court may reach the issue
because an illegal sentence may be corrected at any time under K.S.A. 2020 Supp. 22-
3504(a), including when the issue is raised for the first time on appeal. See K.S.A. 2020
Supp. 22-3504(a) ("The court may correct an illegal sentence at any time while the
defendant is serving such a sentence."); State v. Dickey, 301 Kan. 1018, 1027, 350 P.3d
1054 (2015) (holding the "language [of K.S.A. 22-3504(1)] has generally been
interpreted to mean that 'an illegal sentence issue may be considered for the first time on
appeal'").
Nelson acknowledges that in the plea agreement, he agreed to the 36-month
extended probation he is now appealing from, but he argues this does not preclude our
court from reviewing the issue because a defendant may not lawfully agree to an illegal
sentence. See State v. Hankins, 304 Kan. 226, 231, 372 P.3d 1124 (2016). The State does
not object to our consideration of this claimed illegal sentence as a violation of Kansas
statutory law. We will consider this issue.
4
Although a court may correct an illegal sentence at any time, the illegal sentence
statute has limited applicability. See State v. Alford, 308 Kan. 1336, 1338, 429 P.3d 197
(2018). K.S.A. 2020 Supp. 22-3504(c)(1) defines an illegal sentence as a sentence
"[i]mposed by a court without jurisdiction; that does not conform to the applicable
statutory provision, either in character or punishment; or that is ambiguous with respect
to the time and manner in which it is to be served at the time it is pronounced." See State
v. Hambright, 310 Kan. 408, 411, 447 P.3d 972 (2019).
On appeal, Nelson contends the district court imposed an illegal sentence because
the extended probation did not conform to the applicable statutory provision. In
particular, the statutory provision Nelson was sentenced under, K.S.A. 2020 Supp. 21-
6608(c)(5), does not apply to the severity level 7 crime for which he was convicted. The
State candidly concedes the issue: "Undoubtedly, K.S.A. 21-6608(c)(5) was inapplicable
to Nelson's crimes." We agree.
Nelson was convicted of aggravated battery, a severity level 7 felony. As provided
in K.S.A. 2020 Supp. 21-6608(c)(1)(B), the "recommended duration of probation" for a
severity level 7 felony is 24 months. At the plea hearing, however, the prosecutor
informed the district court: "The parties are going to also jointly recommend that under
K.S.A. 21-6608, Section (c)(5) that the Court make a finding that a longer term of
probation is needed for offender welfare and safety of the public, and that the probation
should be extended for a term of three years . . . ." Defense counsel agreed. The district
court accepted Nelson's pleas and found him guilty.
At sentencing, the district judge stated:
"I am, pursuant to the plea agreement, suspending imposition of the sentence that I have
just pronounced, and I am imposing probation. K.S.A. 21-6608(c)(5) allows the Court to
make a finding that probation should be longer than the 24 months presumption, if the
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Court articulates a finding that a longer term is needed for offender welfare and the safety
of the public."
After making these findings, the district court imposed an extended three-year
term of probation. Additionally, in sections IV and VII of the sentencing journal entry
filed in this case, the district court memorialized the extended probation term: "36
months pursuant to plea agreement and K.S.A. 21-6608(c)(5)."
In summary, sentencing Nelson to an extended three-year probation pursuant to
K.S.A. 2020 Supp. 21-6608(c)(5) was provided for in the plea agreement, stated at the
plea hearing, invoked by the district court at sentencing, and memorialized in the
sentencing journal entry.
As pointed out by Nelson, however, and as conceded by the State, K.S.A. 2020
Supp. 21-6608(c)(5) does not apply to Nelson's sentence for a severity level 7 felony.
Rather, that subsection provides for extension of presumptive probation terms relating to
severity level 8, 9, and 10 crimes. See K.S.A. 2020 Supp. 21-6608(c)(3), (c)(4), (c)(5).
Quite simply, the extension of Nelson's probation under K.S.A. 2020 Supp. 21-
6608(c)(5) resulted in an illegal sentence.
Hambright provides valuable guidance under similar factual circumstances to
support our holding. In Hambright, the defendant entered into a plea agreement wherein
he pled guilty to felony criminal damage to property, a severity level 7 felony. At
sentencing, the district court ordered an extended 36-month probation term after finding
that the welfare of Hambright or the public would not be served by the 24-month
statutory term. Hambright appealed.
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As summarized by our Supreme Court:
"Hambright appealed to the Court of Appeals, challenging the legality of his
sentence and the workability of his restitution plan. On the first issue, he argued that his
sentence is illegal under K.S.A. 22-3504 because it does not conform to K.S.A. 2018
Supp. 21-6608, the statute addressing probation duration. Specifically, he pointed out that
K.S.A. 2018 Supp. 21-6608(c)(1)(B) sets a 24-month recommended duration of probation
for his severity level 7 felony. He asserted that the district court erroneously applied
K.S.A. 2018 Supp. 21-6608(c)(5) to extend his probation term to 36 months, because that
subsection only applies to severity levels 8 through 10 crimes." 310 Kan. at 409.
Having set forth the factual background for its review of our court's decision, the
Supreme Court analyzed the legality of the extended term of probation:
"Even the State concedes that the district court's reliance on K.S.A. 2018 Supp.
21-6608(c)(5) for authority to extend Hambright's term of probation, as stated in the
journal entry, was erroneous. That subsection simply did not apply to Hambright's
sentence for a severity level 7 felony. Ordinarily, when a district court's decision is based
upon an error of law, an appellate court will label that action as an abuse of discretion and
remand for the district court to apply the correct legal standard. See, e.g., State v. Ardry,
295 Kan. 733, 736-37, 286 P.3d 207 (2012) (sentence based on judge's erroneous legal
conclusion; remanded for resentencing under correct legal standard); see also Holt v.
State, 290 Kan. 491, 503, 232 P.3d 848 (2010) (district court's ban on inmate filing
motions guided by erroneous legal conclusion; remand for correction)." Hambright, 310
Kan. at 411.
In Hambright, however, our court took a different approach. We first noted that
although the sentencing journal entry mistakenly stated that the probation extension was
authorized by K.S.A. 2020 Supp. 21-6608(c)(5), at the sentencing hearing "the sentence
pronounced from the bench contained no reference to K.S.A. 2015 Supp. 21-6608(c)(5)."
State v. Hambright, 53 Kan. App. 2d 355, 357-58, 388 P.3d 613 (2017), rev'd 310 Kan.
408 447 P.3d 972 (2019). Moreover, we found the sentence was not illegal because it was
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not a departure sentence and the district court had discretion to find substantial and
compelling reasons to extend the probation. Hambright, 53 Kan. App. 2d at 358. The
Supreme Court disagreed, disapproved of our holding, and reversed and remanded for
resentencing. Hambright, 310 Kan. at 420.
Our Supreme Court's holding in Hambright suggests the appropriate path forward
under the circumstances is for our court to make a finding of an illegal sentence as related
to the district court's error of law in extending probation under K.S.A. 2020 Supp. 21-
6608(c)(5), vacate the sentence of probation, and remand with directions for the district
court to resentence Nelson to probation under the correct legal standard.
Given our holding predicated on a statutory error, we decline to address Nelson's
argument regarding a claimed constitutional error. See Wilson v. Sebelius, 276 Kan. 87,
91, 72 P.3d 553 (2003) ("[W]here there is a valid alternative ground for relief, an
appellate court need not reach constitutional challenges to statutes.").
CRIMINAL HISTORY SCORE
For his second issue, Nelson contends the district court erred in scoring his
criminal history by including his prior conviction for DUI in South Dakota in arriving at
a D criminal history score. Nelson asserts that if his argument is successful, it "would
result in Mr. Nelson serving a legally correct, shorter sentence." In particular, Nelson
argues the district court erred in scoring the conviction as an adult, nonperson
misdemeanor because the South Dakota crime of DUI "is not comparable to any Kansas
crime." See State v. Wetrich, 307 Kan. 552, 562, 412 P.3d 984 (2018). Because Nelson
believes the South Dakota DUI statute criminalizes broader conduct than the Kansas DUI
statute, he asserts the prior conviction may not be used in scoring his criminal history. In
response, the State asserts that Nelson's prior South Dakota DUI conviction, "however
classified, had no impact on his properly scored criminal history."
8
Whether a district court erred in classifying a prior crime when calculating a
criminal history score involves interpretation of the KSGA, which is a question of law
subject to unlimited review. State v. Smith, 309 Kan. 929, 932, 441 P.3d 472 (2019).
Nelson concedes he did not object to his criminal history in the district court but
argues the panel should consider his claim despite this omission. Our Supreme Court has
found that courts may correct an illegal sentence at any time while the defendant is
serving the sentence. See K.S.A. 2020 Supp. 22-3504(a). A defendant who stipulates to
his or her criminal history at sentencing may not later challenge the existence of
convictions listed in that criminal history, but he or she may later claim the sentence was
illegal because the person or nonperson classification of a prior conviction was incorrect.
Dickey, 301 Kan. at 1032. Here, Nelson is claiming he is serving an illegal sentence
because the district court improperly included a prior out-of-state conviction that has no
comparable crime in Kansas. As a result, we will review this issue.
Prior to Nelson pleading no contest, the parties anticipated that Nelson's criminal
history score was D. The PSI report confirmed this score. At sentencing, Nelson opined
that his criminal history "look[ed] accurate," and the district court proceeded to "sentence
Mr. Nelson as a criminal history score D."
K.S.A. 2020 Supp. 21-6809 governs criminal history categories. To achieve the
criminal history score of D, "[t]he offender's criminal history includes one adult
conviction or juvenile adjudication for a person felony, but no adult conviction or
juvenile adjudications for a nonperson felony." K.S.A. 2020 Supp. 21-6809. In addition
to Nelson's prior South Dakota DUI conviction challenged on appeal, Nelson's criminal
history included a 2010 conviction for sexual exploitation of a child. The PSI report
classified this conviction as an adult person felony.
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As the State argues, Nelson's prior adult person felony conviction for sexual
exploitation of a child was sufficient to classify his criminal history score as D under
K.S.A. 2020 Supp. 21-6809. Assuming Nelson's legal argument regarding his prior South
Dakota DUI conviction is correct, the exclusion of that conviction would not affect his D
criminal history score. As a result, the State concludes that "[a]t best, Nelson raises a
harmless or moot error."
In his appellant's brief, Nelson does not contest or mention his 2010 prior sexual
offense or explain how his prior 2010 adult person felony, alone, does not result in a D
criminal history score. Moreover, Nelson did not file a reply brief to respond to the
State's argument that this issue is moot or, at best, harmless error.
We are not persuaded that Nelson has established reversible error in the
classification of his criminal history score. Nelson's criminal history classification score
is D, regardless of whether his prior South Dakota DUI conviction is included in
classifying his criminal history. See K.S.A. 2020 Supp. 21-6809. Under these
circumstances, regardless of the inclusion of the South Dakota DUI conviction in his
criminal history score, none of Nelson's statutory or constitutional rights were affected.
See State v. Metcalf, No. 114,697, 2017 WL 3575233, at *1 (Kan. App. 2017)
(unpublished opinion) ("When a defendant's criminal history score remains an A even if
some challenged convictions weren't considered, our court has found arguments such as
Metcalf's either moot (presenting no real issue) or unpersuasive because any error that
was made would have been harmless.").
CONSTITUTIONALITY OF THE REVISED KANSAS SENTENCING GUIDELINES
Nelson's final argument on appeal is that the KSGA violates section 5 of the
Kansas Constitution Bill of Rights because it permits judicial fact-finding of prior
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convictions without first requiring the State to prove those convictions to a jury beyond a
reasonable doubt.
A constitutional challenge to the KSGA involves a question of law subject to
unlimited review. Wetrich, 307 Kan. at 555.
Nelson's claim based on the Kansas Constitution Bill of Rights is that section 5
reserves the jury trial right as it historically existed at common law when the state's
Constitution came into existence. Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1133-34, 442
P.3d 509 (2019). Relying on cases cited by Justice Thomas in his Apprendi concurrence,
Nelson asserts there was an American common-law right to a jury trial on penalty-
enhancing prior convictions that predates Kansas statehood. And because the KSGA
relies on judicial findings of prior convictions to determine presumptive sentences,
Nelson surmises that the KSGA violates the common-law right to a jury trial provided in
section 5.
Recently, our Supreme Court considered and rejected an identical argument in
State v. Albano, 313 Kan. 638, Syl. ¶ 4, 487 P.3d 750 (2021). The Supreme Court held:
"Section 5 of the Kansas Constitution Bill of Rights does not guarantee
defendants the right to have a jury determine the existence of sentence-enhancing prior
convictions under the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020
Supp. 21-6801 et seq.; no authority substantiates that defendants had such a jury trial
right at common law when our state Constitution was adopted." 313 Kan. 638, Syl. ¶ 4.
Albano is dispositive of this issue. The KSGA does not violate section 5 of the
Kansas Constitution Bill of Rights.
Affirmed in part, vacated in part, and remanded with directions to resentence
Nelson to probation under the correct legal standard.
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