NOT DESIGNATED FOR PUBLICATION
No. 123,767
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JEVANTE OLIVER,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed February 4, 2022.
Affirmed.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before CLINE, P.J., GREEN, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: In this appeal Jevante Oliver challenges the inclusion of his
criminal threat conviction in case No. 13CR2196 in the calculation of his criminal history
score when sentencing him in case No. 18CR2402. He contends that K.S.A. 2020 Supp.
21-6810(d)(9)'s plain language and our Supreme Court's holding in State v. Boettger, 310
Kan. 800, 450 P.3d 805 (2019), cert. denied 140 S. Ct. 1956 (2020), barred the district
court from using his prior criminal threat conviction to calculate his criminal history
score. Thus, according to Oliver, the sentence imposed by the district court was illegal.
We are unpersuaded by this argument and affirm.
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PROCEDURAL HISTORY
In 18CR2402, the State charged Oliver with two drug crimes. Oliver entered into a
plea agreement whereby the State agreed to reduce one of the drug charges. Oliver agreed
to plead guilty to this reduced charge as well as to the other charge of possession of
paraphernalia with intent to distribute. The State agreed to request the low number in the
grid box for each crime but was free to request that the court impose consecutive prison
sentences. Oliver was free to request probation.
At the plea hearing, Oliver entered the agreed guilty pleas. At sentencing in March
2019, the district court granted Oliver's request for probation for both crimes. The court
sentenced him to two consecutive 12-month terms of probation with underlying
consecutive prison sentences of 30 months and 11 months followed by 12 months'
postrelease supervision.
Several months later, the State moved to revoke Oliver's probation based on new
crimes Oliver was alleged to have committed in violation of the terms of his probation.
(Those new charges were the subject of case No. 19CR1914. That case is the subject of
another appeal we are also considering today.) At the hearing on the State's motion,
Oliver admitted the probation violation.
Central to the current appeal is our Supreme Court's holding in Boettger. In that
case our Supreme Court held that the portion of our criminal threat statute, K.S.A. 2018
Supp. 21-5415, which criminalized the making of a threat of violence in reckless
disregard of the risk of causing fear, is "unconstitutionally overbroad because it punishes
conduct that may be constitutionally protected under some circumstances." 310 Kan. 800,
Syl. ¶ 3. (The remaining provision of the statute, K.S.A. 2018 Supp. 21-5415[a][1],
which criminalized intentional criminal threats, remains intact.) K.S.A. 2020 Supp. 21-
6810(d)(9) prohibits a district court from using a defendant's prior conviction for
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purposes of calculating a criminal history score if an appellate court has determined that
the law the defendant violated is unconstitutional.
Based on the holding in Boettger, Oliver moved the court to disregard his criminal
threat conviction in 13CR2196 in calculating his criminal history score. He contended
that his criminal conduct in that case was reckless rather than intentional. He argued that
including this prior conviction in his criminal history when he was originally sentenced in
this case improperly changed his criminal history score from E to C, resulting in an
illegal sentence.
The State conceded that it had charged Oliver with both intentional criminal threat
and reckless criminal threat in the earlier case. But it asserted that the colloquy between
Oliver and the court regarding the factual basis for Oliver's conviction established that
Oliver's criminal threat was intentional rather than reckless, and that only the portion of
the statute dealing with reckless conduct was found in Boettger to be unconstitutional.
The State relied on the following exchange that took place at the time of Oliver's plea in
the criminal threat case.
"THE COURT: Now, in relation to that amended charge of criminal threat, Mr.
Oliver, how do you plead to that?
"THE DEFENDANT: Guilty.
"THE COURT: Are you pleading guilty to that amended charge because you are
guilty?
"THE DEFENDANT: Yes, sir.
"THE COURT: Okay. What I would like for you to do, Mr. Oliver, is tell me in
your own words what you did on or about July 17th of last year here in Sedgwick
County, Kansas, that makes you think you are guilty of criminal threat. First of all, did
this involve a person by the name of Bishop L. Howard?
"THE DEFENDANT: Yes, sir.
....
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"THE COURT: . . . Did you do any communications with him or make any
threats to him—
"THE DEFENDANT: Yes, sir.
"THE COURT: — to commit violence? Okay. What exactly was that?
"THE DEFENDANT: I threatened to hurt him. We had got into an altercation. I
was—
"THE COURT: Okay. Did you threaten to kill him or hurt him or shoot him or
anything like that?
"THE DEFENDANT: No, sir.
"THE COURT: Okay.
"THE DEFENDANT: Just threatened to hit him.
"THE COURT: Okay. Threated to commit violence against him?
"THE DEFENDANT: Yes, sir.
"THE COURT: And when you threatened to commit violence against him or to
hit him, as you stated, did you do it with the intent to put him in fear?
"THE DEFENDANT: Yes, sir.
"THE COURT: State satisfied with the factual basis?
"[THE STATE]: Yes, sir.
"THE COURT: The Court will find that the defendant knowingly, intelligently,
voluntarily waived his rights, including his right to a jury trial. Furthermore, based on his
plea of guilty, his factual basis that he told me and his responses to the questions, I will
find and adjudge him guilty of criminal threat, a severity level nine person felony as
alleged in the Amended Information." (Emphases added.)
Based on this colloquy the district court rejected Oliver's challenge in the present
case to his criminal history, revoked Oliver's probation in 18CR2402, and ordered him to
serve his original underlying prison sentences for his convictions.
Oliver appeals.
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ANALYSIS
Oliver's basic contention is that the district court improperly included in his
criminal history his earlier criminal threat conviction. Under K.S.A. 2020 Supp. 21-
6810(d)(9), "[p]rior 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." Here, the issue is whether Oliver had been convicted of reckless
criminal threat under that portion of K.S.A. 2018 Supp. 21-5415, which has been
declared unconstitutional by our Supreme Court in Boettger. If so, Oliver contends that
the inclusion of this criminal threat conviction in his criminal history rendered illegal the
sentence imposed in his current drug case. Whether a sentence is illegal is a question of
law over which we exercise de novo review. State v. Sartin, 310 Kan. 367, 369, 446 P.3d
1068 (2019).
The Change in the Law Under Boettger
As noted earlier, our Supreme Court held in Boettger that the provision in K.S.A.
2018 Supp. 21-5415(a)(1), which criminalized a threat of violence made in reckless
disregard of the risk of causing fear, is unconstitutional. The remaining provision of
K.S.A. 2018 Supp. 21-5415(a)(1), which criminalized intentional criminal threats,
remained intact.
The central question is whether the holding in Boettger had any effect on Oliver's
criminal threat conviction. In State v. Murdock, 309 Kan. 585, 592, 439 P.3d 307 (2019),
the court recognized that "subsequent developments in the law . . . cannot transform a
once legal sentence into an illegal sentence." Thus, a sentence that is legal when imposed
does not become illegal because of a change in the law that occurs after the sentence is
pronounced unless the change in the law occurs "while the sentence is pending an appeal
from the judgment of conviction." K.S.A. 2020 Supp. 22-3504(c)(2).
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Here, Oliver pleaded guilty to criminal threat in August 2014. The district court
sentenced Oliver in our current case in March 2019. Oliver had 14 days thereafter in
which to appeal his sentence. K.S.A. 2020 Supp. 22-3608(c). When Oliver did not
appeal, his sentence became final. Our Supreme Court did not decide Boettger until
October 2019—well after Oliver's sentence became final. Thus, the change in the law in
Boettger had no impact on Oliver's sentence for his criminal threat conviction.
To avoid this outcome, Oliver contends that the timing of the Boettger decision is
irrelevant. He argues that the Boettger court relied on the earlier decision in Virginia v.
Black, 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003), in deciding that a
portion of the Kansas criminal threat statute was unconstitutionally vague. He contends
the change in the law occurred not in 2019 when Boettger was decided but rather in 2003
when Black was decided—well before Oliver's sentences were imposed in the current
case. Thus, he contends that he is entitled to benefit from the holding in Black.
The Boettger court relied heavily on the United States Supreme Court's decision in
Black. In Black, the Court held that the part of Virginia's cross-burning statute that treated
any cross-burning as prima facia evidence of an intent to intimidate violated the First
Amendment because, while the cross-burning may be a form of illegal intimidation,
"[t]hat same act may mean only that the person is engaged in core political speech." 538
U.S. at 365. Thus, a defendant could be convicted under this Virginia statute even though
the defendant was exercising First Amendment rights rather than burning the cross with
the intent to place another person in fear of bodily harm. 538 U.S. at 365.
But Black did not address Kansas' criminal threat statute. The Kansas criminal
threat statute had to await the holding in Boettger. As a result, another panel of this court
rejected the argument now advanced by Oliver that the date of the decision in Black
controls as to when a change in Kansas' criminal threat law occurred. In State v. Miller,
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No. 121,792, 2020 WL 6533257, at *4 (Kan. App. 2020) (unpublished opinion), rev.
denied 313 Kan. 1045, the court stated:
"Black did not hold, or even address, that the Kansas offense of reckless criminal
threat was unconstitutional. Black addressed a Virginia cross-burning statute and whether
it violated the First Amendment's Free Speech Clause. 538 U.S. at 358-63. The Kansas
Supreme Court acknowledged that neither Black nor any other United States Supreme
Court case addressed whether a threat issued in reckless disregard of causing fear was
unconstitutionally overbroad. Boettger, 310 Kan. at 809. The Boettger court reiterated
that 'Black did not directly address whether the First Amendment tolerates a conviction
for making a threat even though there was no intent to cause fear.' Boettger, 310 Kan. at
812.
"Granted, the Kansas Supreme Court analyzed the reasoning in Black because
'the decision explains the intent necessary to have a true threat prosecuted without
violating the First Amendment's protections.' Boettger, 310 Kan. at 812. The Kansas
Supreme Court explained that the Black decision was insightful because it conveyed a
general definition of true threats—threats that are not protected by the First
Amendment—which required intentional conduct. Boettger, 310 Kan. at 822. Using
Black's definition of true threats, the Boettger court examined the Kansas criminal threat
statute and found the offense of reckless criminal threat was unconstitutional. 310 Kan. at
822-23.
"In sum, it was Boettger, not Black, that declared the Kansas reckless criminal
threat statute unconstitutional."
We are persuaded by the reasoning in Miller and conclude that the key date for our
analysis is the date of the decision in Boettger, not Black. The district court correctly
denied Oliver's criminal history challenge because the sentence for his criminal threat
conviction was final before our Supreme Court decided Boettger.
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Application of the Modified Categorical Approach
The district court used the modified categorical approach described in Descamps
v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), in order to
determine the nature of Oliver's criminal threat conviction. Oliver contends that the plea
colloquy in Oliver's criminal threat case did not definitively establish that he committed
an intentional criminal threat. He contends that his statements to the court at his plea
hearing could fall within the rubric of a reckless criminal threat or could merely be
indicative of reckless, impulsive bluster rather than an intentional threat. We will address
those two contentions shortly.
Courts generally calculate a defendant's criminal history by looking at the
statutory elements of the defendant's prior convictions. But in Descamps, the United
States Supreme Court recognized a "modified categorical approach" that allowed the
sentencing court to look beyond the statutory elements of the prior conviction when that
prior conviction "comprises multiple, alternative versions of the crime" and "a later
sentencing court cannot tell, without reviewing something more, if the defendant's
conviction" arose under any particular alternative. 570 U.S. at 261-62. In such cases,
courts may "examine a limited class of documents to determine which of a statute's
alternative elements formed the basis of the defendant's prior conviction." 570 U.S. at
262. That "'limited class of documents'" includes "'transcripts of plea colloquies.'" State v.
Obregon, 309 Kan. 1267, 1274, 444 P.3d 331 (2019) (quoting Johnson v. United States,
559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 [2010]).
Oliver had been charged with both of the statutory alternatives for criminal threat
under K.S.A. 2013 Supp. 21-5415(a)(1), which provided:
"(a) A criminal threat is any threat to:
(1) Commit violence communicated with intent to place another in fear, or to
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cause the evacuation, lock down or disruption in regular, ongoing activities of any
building, place of assembly or facility of transportation, or in reckless disregard of the
risk of causing such fear or evacuation, lock down or disruption in regular, ongoing
activities." (Emphases added.)
This broad charge under K.S.A. 2013 Supp. 21-5415(a)(1) did not shed light on
which type of criminal threat Oliver engaged in. But the plea colloquy we have already
recounted does. In responding to the district court's questions, Oliver explicitly stated that
he intended to place Howard in fear by threatening violence without ever mentioning or
characterizing his conduct as being reckless or bluster. The district court accepted
Oliver's guilty plea "based on his plea of guilty, his factual basis that he told me and his
responses to the questions." The only evidence before the court to support Oliver's
conviction for criminal threat was that Oliver acted intentionally, not recklessly. The
district court properly applied the modified categorical approach in arriving at the
conclusion that Oliver's prior criminal threat conviction was for intentional—not
reckless—conduct. The district court's application of the modified categorical approach
was in conformity with Johnson; Obregon, 309 Kan. at 1274; and State v. Dickey, 301
Kan. 1018, 1038, 350 P.3d 1054 (2015).
"Trash Talk" vs. an Intentional Threat
That portion of K.S.A 2013 Supp. 21-5415(a)(1), which criminalizes a threat of
violence made with the intent to place another in fear, is not affected by the holding in
Boettger. So Oliver advances the argument that his threat to Howard "could be viewed as
just trash talk during an argument, as opposed to an intentional threat." To support this
argument, he compares his case to State v. Lindemuth, 312 Kan. 12, 470 P.3d 1279
(2020), and State v. Cardillo, No. 120,606, 2021 WL 1149145 (Kan. App. 2021)
(unpublished opinion).
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Neither Lindemuth nor Cardillo applies. Both involved jury trials in which the
relevant issue was whether the evidence supported a reckless or an intentional criminal
threat. In Lindemuth, our Supreme Court determined that the defendant's threats may
have been impulsive bluster rather than an intentional threat. 312 Kan. at 18. A similar
finding was made in Cardillo, 2021 WL 1149145, at *5. But in our present case there
was no trial. Oliver pled guilty and admitted to the court that he intentionally threatened
the victim with violence in order to put him in fear. There is a complete lack of any
evidence in the plea hearing transcript that Oliver recklessly threatened Howard. By
Oliver's own admissions to the court, his threat was intentional and not merely trash talk.
Even if the date of the Black decision controlled over Boettger, Oliver's argument does
not successfully place Oliver in the safe harbor of the holdings in either Boettger or
Black.
Proof of Reckless Conduct by Proving Intentional Conduct
Oliver also contends that under K.S.A. 2020 Supp. 21-5202(c), proof that a
defendant acted intentionally also constitutes proof that a defendant acted recklessly.
K.S.A. 2020 Supp. 21-5202(c) provides: "Proof of a higher degree of culpability than that
charged constitutes proof of the culpability charged. If recklessness suffices to establish
an element, that element also is established if a person acts . . . intentionally." Such an
outcome flies in the face of Boettger, which only found unconstitutional a conviction
based on reckless conduct and left intact a conviction based on intentional conduct.
Oliver's contention would result in every criminal threat—whether intentional or
reckless—being declared unconstitutional under Boettger.
Besides, we fail to see how this advances Oliver's cause. If Oliver's admission to
the court that he acted intentionally also establishes that he acted recklessly, such an
admission to recklessness would not have been saved by Boettger, which had not yet
been decided. Had the timing of Boettger favored Oliver, the holding in Boettger still
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would not have saved Oliver because the admission that he acted intentionally would
remain unaffected by the holding in Boettger.
Conclusion
In resolving the question whether Oliver's conduct in his prior criminal threat case
was intentional or reckless, the district court properly applied the modified categorical
approach described in Descamps by examining the plea colloquy in which Oliver
unequivocally stated that he intentionally threatened Harris with violence in order to
place him in fear. Moreover, no reasonable reading of the record could result in the
conclusion that Oliver's conduct was reckless rather than intentional. As a result, Oliver's
criminal threat conviction was unaffected by our Supreme Court's holding in Boettger
that rendered convictions based on recklessness unconstitutional. Thus, we find no error
in the district court including Oliver's criminal threat conviction in his criminal history
score in order to arrive at sentences in Oliver's current drug case.
Affirmed.
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