concurring:
I. Introduction
I reluctantly concur in the majority’s conclusion that, on the merits, the Johnson County District Court correcdy relied on the felony prosecution of Defendant Anthony Hankins in Oklahoma to establish his criminal history score in this case, even though he was never adjudged guilty in Oklahoma and the prosecution was ulti*986mately dismissed. I do so based on the reasoning of a panel of this court in State v. Macias, 30 Kan. App. 2d 79, 83, 39 P.3d 85, rev. denied 273 Kan. 1038 (2002), and endorsed a few months later by the Kansas Supreme Court in State v. Pollard, 273 Kan. 706, 713-14, 44 P.3d 1261 (2002). But Macias failed to discuss or even cite the statutory definition of “conviction” in the Kansas Criminal Code—a definition that would seem to favor a different result in that case and this one. The Pollard court left that apparent flaw unexplored. I also have grave reservations about the invited error rationale the majority principally employs and do not join in that portion of the decision.
The only issue on appeal is how the Kansas courts should treat Hankins' deferred sentencing in Oklahoma for illegal possession of a firearm in determining his criminal history. A defendant’s criminal history is important because the more extensive that history the longer the presumptive sentence he or she faces. Under the Kansas sentencing scheme, some convictions are counted and others not. If a defendant has convictions from another jurisdiction, the district court must determine whether those convictions would be counted under Kansas law. See State v. Siesener, 35 Kan. App. 2d 649, 650-52, 137 P.3d 498 (2005), rev. denied 281 Kan. 1381 (2006); Macias, 30 Kan. App. 2d at 82. That can get tricky in a couple of respects.[1]
First, the out-of-state conviction may be for a crime that has no precise analog under the Kansas Criminal Code, so it may be classified for criminal history purposes, in part, like a comparable Kansas offense. See State v. Barajas, 43 Kan. App. 2d 639, 642, 230 P.3d 784 (2010). Hankins doesn’t make drat argument here.[2] But he does argue that because of the way Oklahoma handled the charge against him, it didn’t result in a conviction drat should be included in his criminal history. And that’s a second way dealing with out-of-state criminal cases turns complicated. Different states *987have different processes for giving deserving criminal defendants breaks that may avoid judgments of conviction on charges. Hankins says the Oklahoma case shouldn’t be included in his criminal history for that reason.
As outlined in the majority opinion, under Oklahoma’s deferred sentencing procedure, a defendant pleads guilty or no contest to a charge and the trial court imposes certain conditions on the individual. If tire defendant satisfies those conditions, a process that can take years, the case is dismissed. The defendant has no conviction under Oklahoma law. Perhaps more significantly for Hank-ins and this case, the Oklahoma statute provides that the trial court does not enter a judgment of guilt unless the defendant fails to satisfy the conditions. Okla. Stat. tit. 22, § 991c (2011). Hankins successfully completed the Oklahoma deferred sentencing process on the firearms charge. So he was never adjudged guilty, and the case was dismissed with prejudice. No judgment was ever entered against Hankins in the Oklahoma prosecution.
The majority concludes that the invited error doctrine precludes this court from considering Hankins’ challenge. The majority then considers the merits of the argument and finds the Oklahoma prosecution ought to be included in Hankins’ criminal history for sentencing in this case. I take up the issues in the reverse order. Given Kansas Supreme Court authority on establishing criminal histories, I concur with the majority on the merits. But I suggest a strong statutory argument against counting the Oklahoma proceeding. I dren explain my disagreement with die majority’s use of invited error to reject Hankins’ appeal.
*988II. Precedent Favors Including Oklahoma Proceeding in Criminal History
The substantive question presented is how an Oklahoma prosecution resulting in a deferred sentencing should be fit into the Kansas statutoiy scheme for determining a defendant’s criminal history. As tire caselaw has developed, it should be counted. But that authority neglects governing Kansas statutes that appear to require the opposite result. Because the cases include a studied decision from the Kansas Supreme Court, I am required to stick with that conclusion, despite a contrary statutoiy argument that seems compelling. I begin with the statutes and then discuss the caselaw.
As provided in K.S.A. 2013 Supp. 21-6810(a), a defendant’s criminal history category is “based on . . . convictions.” The statute then identifies convictions included in the criminal histoiy with generic labels such as “person felony adult convictions” and “person felony juvenile adjudications.” The statute does not include a definition of conviction. But K.S.A. 2013 Supp. 21-5111(d) defines “conviction” as “includfing] a judgment of guilt entered upon a plea of guilty,” a definition to be used throughout the Kansas Criminal Code.
As the majority notes, the term “conviction” may refer to a final judgment of guilt and punishment in a criminal case. See, e.g., 18 U.S.C. § 3582(b) (2006); Dillon v. United States, 560 U.S. 817, 824, 130 S. Ct. 2683, 177 L. Ed. 2d 271 (2010). But it may also mean a judicial finding of guilt entered upon a plea or verdict—an intermediate step in a prosecution before sentencing. See Deal v. United States, 508 U.S. 129, 132, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993) (conviction may refer “to the finding of guilt by a judge or jury that necessarily precedes the entry of a final judgment of conviction,” as the Court found it must for purposes of the federal statute governing certain firearms offenses); Black’s Law Dictionary 384 (9th ed. 2009). Thus, as the Deal Court recognized: “It is certainly correct that the word ‘conviction’ can mean either the finding of guilt or the entry of a final judgment on that finding.” 508 U.S. at 131.
*989The Kansas Legislature presumably intended to avoid uncertainty about the meaning of the word “conviction” for purposes of the criminal code by defining it in K.S.A. 2013 Supp. 21-5111(d). That definition broadens the meaning from a final judgment including punishment to include a judicial determination of guilt upon a plea. Applying the statutory definition of conviction to the prosecution of Hanldns in Oklahoma, that proceeding cannot be considered a conviction for purposes of the sentencing statutes in tire Kansas Criminal Code. The Oklahoma deferred sentencing process pointedly excludes a judicial finding or judgment of guilt unless a defendant violates the conditions imposed as part of the deferral. Everybody agrees that Hanldns successfully completed the process. So no Oklahoma court adjudged him guilty, and the charges were dismissed. In short, the definition of conviction in K.S.A. 2013 Supp. 21-5111(d) does not encompass a successful deferred sentencing proceeding in Oklahoma, and, on that basis at least, Hanldns would seem to have a sound argument for excluding it from his criminal history score in this case.
Had the legislature wanted to treat a plea of guilty without a judicial finding or judgment of guilt as a conviction, it easily could have done so. The legislature simply could have said that a conviction “includes a plea of guilty,” jettisoning the mention of a judgment of guilt and, thus, any reference to judicial action following the plea itself. That would be an unusual meaning. But the legislature presumably would be free to adopt such a definition.
To read tire actual language of K.S.A. 2013 Supp. 21-5111(d) that way, however, contravenes basic principles of statutory construction by altering the plain meaning of the words and rendering part of the statute superfluous. See Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, Syl. ¶ 6, 241 P.3d 15 (2010) (The court “will not speculate on legislative intent and will not read the [statutory] provision to add something not readily found in it.”); State v. Van Hoet, 277 Kan. 815, 826-27, 89 P.3d 606 (2004) (“The court should avoid interpreting a statute in such a way that part of it becomes surplusage.”). That reading would impute a peculiar definition to the term “conviction” absent any *990signal from the legislature to that effect. And it really would contradict the reasonable import of the statutory language.
If I were writing on the proverbial clean slate, I would say the controlling definition of conviction in K.S.A. 2013 Supp. 21-5111(d), coupled with the Oklahoma statute outlining deferred sentencing prosecutions, requires excluding Hankins’ Oklahoma prosecution in determining his criminal history score. But I am not so favored. [3]
In Macias, a panel of this court held that a Texas prosecution that functionally operated the same way as the Oklahoma deferred sentencing procedure amounted to a conviction that should be included in a Kansas defendant’s criminal history score. 30 Kan. App. 2d at 81 (under Texas statute, trial court takes defendant’s guilty plea but defers further proceedings without adjudicating guilt), at 83 (offense may be included in criminal history if out-of-state court determined defendant committed the crime, as by receiving guilty plea). The panel reasoned that a foreign prosecution should be scored for criminal history purposes if a court determined the defendant committed the offense, even though no judgment or ad*991judication of guilt had been entered. 30 Kan. App. 2d at 81. The court cited K.S.A. 21-4710, the predecessor to K.S.A. 2013 Supp. 21-6810, describing generally the sorts of convictions to be included in a criminal history without defining the term “conviction.” The court, however, did not mention, let alone discuss or distinguish, K.S.A. 21-3110(4) that defined conviction the same way it is now in K.S.A. 2013 Supp. 21-5111(d). The failure to account for the definition of conviction controlling under the Kansas Criminal Code—including the statutes governing sentencing— amounts to a significant shortcoming that seems to undercut the rationale and the result in Macias.
If Macias and later decisions of this court trading on the same reasoning and tire same' omission of the statutory definition of conviction, e.g., Siesener, 35 Kan. App. 2d at 650-52, constituted the precedential universe, I likely would vote to reverse in this case. While a published decision from one panel of this court binds district courts, it has no preclusive or stare decisis effect on later panels. See State v. Urban, 291 Kan. 214, 223, 239 P.3d 837 (2010); Osterhaus v. Toth, 39 Kan. App. 2d 999, 1008, 187 P.3d 126 (2008), aff'd 291 Kan. 759, 249 P.3d 888 (2011). But the Kansas Supreme Court adopted the reasoning of Macias in Pollard, 273 Kan. at 713-14. This court is bound to the rulings of higher judicial authority. State v. Dawson, 43 Kan. App. 2d 800, 803, 231 P.3d 582, rev. denied 290 Kan. 1097 (2010).
In a technical sense, Pollard’s endorsement of Macias is dicta. The issue in Pollard was different, and Macias was cited as authority addressing an analogous proposition in a comparable manner. The Pollard court discussed Macias in some detail and fully integrated the panel's reasoning into its resolution of tire case. 273 Kan. at 713-14. The court did not, however, note or comment on the failure of the Macias panel to consider the statutory definition of a conviction in resolving the dispute- over what should be included in criminal histories. Nonetheless, Pollard’s substantial reliance on Macias effectively imbues that approach and analysis with something approaching precedential force.
As other courts have observed, dicta comes packaged in all different ways. Dicta, as a dismissive label, typically gets put on a *992short aside largely disconnected from die issue being decided. That sort of comment—something of an academic or even idle musing of the audioring judge—may be treated as having no precedential force, since it forms no part of the holding or the structured reasoning leading to die holding. See Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006) (Some dicta may be characterized as “devoid-of-analysis, throw-away land of dicta” and discounted accordingly.). Conversely, dicta reflecting detailed review and analysis from a higher judicial authority should be afforded deference and cannot be “ ‘lightly cast aside/ ” 451 F.3d at 1325-26; see also Black Warrior Riverkeeper v. Black Warrior Min's, Inc., 734 F.3d 1297, 1305-06 (11th Cir. 2013); Southern Wine & Spirits v. Alcohol & Tobacco Ctrl., 731 F.3d 799, 809 (8th Cir. 2013) (courts of appeal owe the “Supreme Court’s considered dicta” nearly as much deference as “outright holdings”); United States v. Orona, 724 F.3d 1297, 1311 (10th Cir. 2013) (court of appeals bound by “Supreme Court dicta almost as firmly as by the Court’s outright holdings”); McCrary v. Metropolitan Life Ins. Co., 690 F.3d 176, 182 n.2 (4th Cir. 2012).
The Kansas Supreme Court’s treatment of Macias in Pollard looks to me to be in the category of studied dicta commanding near precedential treatment under the customary considerations of stare decisis. While the Kansas Supreme Court itself may abandon or retool that dicta, a panel of this court really ought not. So I am constrained to follow and apply Macias—not because I think it is correct or because it is a published opinion of another panel but because die Kansas Supreme Court has weighed die decision and incorporated it into considered reasoning applied to resolve a different legal dispute. For that reason, I concur in the result here. The district court did not err in using the Oklahoma- deferred prosecution of Hankins to increase his criminal history in tiiis case.
III. Invited Error Inapplicable Here
The majority incorrectly holds that the invited error doctrine bars review of Hankins’ challenge to the inclusion of the Oklahoma deferred sentencing in his criminal history score. That determination is wrong on several grounds implicating both statutory and *993constitutional rights. I question whether a defendant can irrevocably “invite” a legal error directly increasing his or her criminal history score, especially when the error leads to a term of incarceration longer than the sentencing statutes would otherwise provide. For that reason, I do not join in the majority’s reliance on invited error to deny Hankins’ appeal.
A. Statutory Considerations
Putting constitutional issues to one side for the moment, I consider K.S.A. 2013 Supp. 21-6814, the statute governing how the district court should establish a defendant’s criminal history score and how a defendant may challenge Üiat histoiy. In pertinent part, the statute provides:
“(a) The offender’s criminal history shall be admitted in open court by the offender or determined by a preponderance of the evidence at the sentencing hearing by the sentencing judge.
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“(c) Upon receipt of the criminal histoiy worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal histoiy worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of proving the disputed portion of the offender’s criminal history. The sentencing judge shall allow the state reasonable time to produce evidence to establish its burden of proof. If the offender later challenges such offender’s criminal history, which has been previously established, the burden of proof shall shift to the offender to prove such offender’s criminal history by a preponderance of the evidence.” (Emphasis added.) K.S.A. 2013 Supp. 21-6814.
The statute recodifies K.S.A. 21-4715. The Kansas Legislature added the italicized portion of subsection (c) in 2009. The 2009 amendment effectively negates the invited error doctrine with respect to a defendant’s criminal history and, thus, allows a defendant to challenge a legal mistake in his or her criminal history even after admitting to the mistaken history at sentencing. The amendment also undercuts the majority’s rationale and the caselaw on which it relies. The case authority either predates the 2009 amendment or fails to acknowledge and account for that statutory change.
The amendment plainly allows a defendant to “later challenge” a criminal histoiy that “has previously been established.” As the *994statute outlines, a defendant’s criminal history may be established at sentencing in either of two ways: the defendant may admit the history or tire prosecution may prove the history to the district court by a preponderance of evidence. The amendment, then, permits a defendant to contest an established criminal history in a “later challenge”—one coming after sentencing. And the amendment permits the challenge without regard to how the criminal history had been shown at sentencing—so the defendant may dispute his or her own admission at sentencing. The amendment shifts the burden of proof in a postsentenciiig challenge from tire prosecution to the defendant.
The invited error doctrine—a judicially created rule akin to es-toppel-—precludes a party from asking a district court to rule a given way and then challenging that ruling as error on appeal. See State v. Hargrove, 48 Kan. App. 2d 522, Syl. ¶ 2, 293 P.3d 787 (2013) (describing invited error); 48 Kan. App. 2d at 548-49 (noting similarities between invited error and judicial estoppel). In short, a party cannot invite a court to do something and then complain because the invitation has been accepted. Because invited error entails a common-law rule, the legislature may statutorily limit or negate its use. K.S.A. 77-109 (the common law may be modified by statutory enactment); see State v. Williams, 283 Kan. 492, 495, 153 P.3d 520 (2007) (legislature may change common-law rule establishing age at which criminal liability attaches to misconduct); Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 617, 132 P.3d 870 (2006) (legislature may change common-law water rights). As I discuss, there also may be constitutional limitations on enforcing the rule in some circumstances. See Hargrove, 48 Kan. App. 2d at 554-55.
Giving the language of K.S.A. 2013 Supp. 21-6814(c) a plain meaning, I would conclude the legislature intended to allow defendants to assert errors in their criminal histories after they have been sentenced. While an appellate court shouldn’t plumb the wisdom of the policy considerations behind legislative action, my reading of K.S.A. 2013 Supp. 21-6814(c) promotes a reasonable result and a sound policy. See Fisher v. DeCarvalho, 298 Kan. 482, 495, 314 P.3d 214 (2013) (“[W]e have a canon of construction that di*995rects us to construe statutes to avoid unreasonable or absurd results.”)- The statute basically helps insure that a convicted criminal serve no longer in prison than the law requires by allowing correction of legal errors elevating criminal histories and, in turn, directing the district court to an excessive presumptive sentence. That reflects a reasonable objective. See Hamdi v. Rumsfeld, 542 U.S. 507, 529, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004) (“[T]he most elemental of liberty interests [is] the interest in being free from physical detention by one’s own government.”). State v. Parker, No. 107,616, 2013 WL 2991138, at *3 (Kan. App. 2013) (unpublished opinion) (Atcheson, J., dissenting) (“The State should not deprive a citizen of his or her freedom for a single day longer than the rule of law requires.”). To foster that objective, the legislature has the prerogative to void the invited error doctrine as a ground for denying relief. That’s what tire amendment to K.S.A. 2013 Supp. 21-6814(c) does.
Defendants should not be forced to serve unduly long sentences because they and their lawyers agree to legally incorrect criminal histories. So a defendant’s agreement to his or her criminal history at sentencing will not bar a later challenge to inaccuracies in the history. Under K.S.A. 2013 Supp. 21-6814(c), the basic fairness of imprisoning someone no longer than the law permits trumps the invited error doctrine as applied to a defendant’s admission of his or her criminal history at sentencing. The statutory approach also makes sense given the sometimes difficult task in sorting out the legal implications of out-of-state criminal proceedings, as this case illustrates. Mistakes are inevitable, but the cost shouldn’t be legally excessive imprisonment.
The legislature also presumably intended the amendment to reverse tire holding in State v. Schow, 287 Kan. 529, 539-40, 197 P.3d 825 (2008), requiring the prosecution to bear the burden of proving convictions a defendant challenges even though they appear on a criminal history worksheet established in an earlier case and then incorporated as part of the worksheet for the current case. The 2009 amendment shifts the burden of proof to the defendant in that situation, but the statutory language permitting later challenges to a criminal history is not limited to that circumstance.
*996The majority contends my construction of the 2009 amendment somehow renders superfluous or meaningless tire statutory obligation imposed on a defendant to raise purported errors in his or her criminal history report before the sexrtencing hearing. But that is quite incorrect. A defendant must adhere to tire objection process to cast upon tire State the burden of proving the disputed entries in his or her criminal history. If the defendant simply raises a “later challenge” after sentencing, he or she must disprove the criminal history. Under my reading of the statute, the presentenc-ing notice requirement triggers the issue and allocates the burden of proof, so it serves not only a useful purpose but an important one. The majority offers a blinkered reading of the amendment’s plain language by limiting later challenges to ones raised in successive cases.
The amendment of K.S.A. 2013 Supp. 21-6814(c) restores a motion to correct an illegal sentence as a proper procedural vehicle for a defendant to assert a “later challenge” to his or her criminal history. See K.S.A. 22-3504(1) (court may correct illegal sentence at any time). A sentence that does not conform to the term of authorized punishment is illegal within the meaning of K.S.A. 22-3504. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). If a defendant’s criminal history has been erroneously determined, the resulting term of imprisonment will not be statutorily authorized and, thus, can be challenged as illegal. State v. Neal, 292 Kan. 625, 630-31, 258 P.3d 365 (2011).
The published cases the majority cites supporting application of the invited error doctrine to a defendant’s agreement with his or her criminal history at sentencing predate the 2009 amendment to 21-6814(c), see State v. Vandervort, 276 Kan. 164, 175-76, 72 P.3d 925 (2003); State v. Goeller, 276 Kan. 578, Syl. ¶ 6, 77 P.3d 1272 (2003); and Neal v. State, 25 Kan. App. 2d 705, 706, 971 P.2d 748 (1998), rev. denied 266 Kan. 1109 (1999), and, therefore, cannot be controlling. Neal v. United States, 516 U.S. 284, 295-96, 116 S. Ct. 763, 133 L. Ed. 2d 709 (1996) (force of precedent or stare decisis construing statute undercut when legislative body later materially changes statutory language); Firstar Bank, N.A. v. Faul, 253 F.3d 982, 989 (7th Cir. 2001) (court should apply stare decisis and *997adhere to precedential decisions unless “subsequent statutory changes . . . have rendered them infirm”)- In a word, the statutory change malees the earlier caselaw inapposite. The later unpublished case the majority cites, State v. Madkins, No. 104,350, 2011 WL 4031531 (Kan. App. 2011) (unpublished opinion), rev. denied 294 Kan. 945 (May 21, 2012), fares no better. It simply relies on the cases predating the 2009 amendment of 21-6814(c) and fails to note the statutory change negating invited error as a bar to a defendant’s challenge to his or her criminal history. I would find that the present version of K.S.A. 2013 Supp. 21-6814 precludes judicial reliance on invited error to bar consideration of Hankins’ challenge to his criminal history. [4]
B. Constitutional Considerations
Apart from the statutory protection in K.S.A. 2013 Supp. 21-6814, Hankins probably has a constitutional argument of sufficient gravity to override any purported bar based on invited error. A citizen has a substantive due process right not to be held or incarcerated longer than a lawful sentence requires. See Hamdi, 542 U.S. at 529; Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”); Meachum v. Fano, 427 U.S. 215, 224, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) (“[Gjiven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.”); Golberg v. Hennepin County, 417 F.3d 808, 811 (8th Cir. 2005) (recognizing substantive due process liberty interest in a right to “timely release” from “initially lawful detention”); Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (“We *998have recognized a protected liberty interest in being free from wrongful, prolonged incarceration.”)- The right would be a fundamental one that likely cannot be compromised by the error invited here. A defendant generally should not be precluded from challenging his or her acquiescence in a legal error in the computation of his or her sentence that results in too long a period of incarceration. That is qualitatively different from a legitimate (if unsuccessful) trial tactic deployed to establish reasonable doubt as to criminal liability. Those sorts of strategic trial decisions bind defendants precisely because they represent choices between reasonable alternatives. See State v. Cheatham, 296 Kan. 417, 443-45, 292 P.3d 318 (2013) (defense lawyer s conduct at trial may be deemed ineffective where proffered strategic explanation could be characterized as something between “a misunderstanding of the law” and simply “nonsensical”); State v. Rice, 261 Kan. 567, 607, 932 P.2d 981 (1997) (defense lawyer may be ineffective when handling of critical aspects of trial lacked “any justifiable strategic considerations”).
A defendant furthers no sound strategy by admitting to an inaccurately high criminal history at sentencing. Here, Hankins’ lawyer told the district court at sentencing that inclusion of the Oklahoma deferred prosecution in the criminal history could be fairly disputed but he chose not to do so. In denying Hankins’ motion to correct an illegal sentence, the district court concluded: “It is apparent that during sentencing the Defendant argued for leniency because he did not challenge his criminal history or add additional burdens to the prosecutor.” And the district court considered any error to be invited as a result. But the premise is an impermissible one, the purported strategy legally unjustifiable, and the legal conclusion mistaken.
The premise is this: The prosecutor and a sentencing court may extend leniency if a defendant declines to raise legitimate issues that cause them to spend more time and effort on the case. The pernicious character of the proposition becomes plain in considering its obverse rendition, Le., a prosecutor or a sentencing court may increase a defendant’s punishment because the defendant asserts legitimate issues that cause them to spend more time and *999effort on the case. But that would amount to impermissible pros-ecutorial or judicial vindictiveness violating a defendant’s due process rights. Alabama v. Smith, 490 U.S. 794, 798-800, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989) (judicial vindictiveness); Blackledge v. Perry, 417 U.S. 21, 27-29, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (prosecutorial vindictiveness); United States v. LaDeau, 734 F.3d 561, 566 (6th Cir. 2013) (“At a minimum, prosecutorial discretion is restrained by the Due Process Clause, which prohibits the prosecution from punishing a defendant for exercising a protected statutory or constitutional right.”); State v. Revelo, 256 Conn. 494, 513, 775 A.2d 260 (2001) (trial court violated defendant’s due process rights by adding a year to defendant’s sentence for the stated reason that defendant pursued a motion to suppress before entering plea); see United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982) (discussing in detail judicial and prosecutorial vindictiveness).
The point is that invited error typically applies to some colorable strategic choice, and the articulated strategy here—avoiding impermissible vindictiveness—-fails in that respect. So the invited error should not negate a violation of a defendant’s substantive due process right to a lawful sentence. Accordingly, invited error ought not bar Hankins’ appeal. [5]
In closing, I add several observations to avoid possible misunderstanding of my comments on prosecutorial and judicial vindictiveness. Here, of course, there was nothing to suggest either pros-ecutorial or judicial vindictiveness in the sentence. Hankins *1000received. And I don’t mean to imply there might have been. Rather, as I have indicated, the articulation of avoiding impermissible vindictiveness as a strategic reason for not contesting the inclusion of the Oklahoma deferred sentencing in Hankins’ criminal history simply fails to justify the majority’s rejection of that challenge as invited error.
Second, actionable prosecutorial or judicial vindictiveness is uncommon, and tire proof is demanding. See Goodwin, 457 U.S. at 375-78, 384 (defendant typically must objectively prove vindictiveness, and vindictiveness may be presumed only in rare circumstances, usually when a defendant is punished more harshly following successful appeal and reversal of an initial conviction). More narrowly, for example, the State may seek an increased sentence following failed plea negotiations without engaging in prohibited conduct, especially when a defendant goes to trial and is convicted. Both the prosecutor and the sentencing court may fairly consider a defendant’s willingness to accept responsibility for his or her wrongful conduct in a plea as a mitigating circumstance warranting some leniency. See United States v. Mejia, 597 F.3d 1329, 1344 (D.C. Cir. 2010). In short, impermissible vindictiveness does not lurk behind every charging or sentencing decision, and a defendant cannot advance a colorable claim based on deflated expectations.
In the context of Eighth Amendment jurisprudence, the United States Supreme Court has noted the difficulty in comparing criminal offenses and the concomitant punishments from one state with offenses and punishments from another state. See Rummel v. Estelle, 445 U.S. 263, 279-80, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980).
The foreign jurisdiction’s classification of the offense as a felony or misdemeanor carries over to the Kansas sentencing regimen. K.S.A. 2013 Supp. 21-6811(e).The Kansas courts then determine whether an out-of-state felony conviction should be considered a person offense or a nonperson offense based on a comparison with “comparable” Kansas crimes. K.S.A. 2013 Supp. 21-6811(e). In general, felonies more negatively affect a defendant’s criminal history for sentencing purposes than do misdemeanors, and person offenses are similarly worse than nonperson offenses.
I discount the majority’s argument that the Oklahoma courts have treated deferred sentencing proceedings as convictions. There are several problems with that approach. First, of course, Kansas law governs what is and is not a conviction for purposes of establishing a defendant’s criminal history. Second, in Gonseth v. State, 871 P.2d 51, 54 (Olda. Crim. App. 1994), which the majority cites, the court suggested that a defendant pleading guilty under a deferred sentencing and being ordered to fulfill certain conditions could then appeal. The court reasoned the process, at that point, could be treated as a “conviction” upon a guilty plea within the meaning of the statute authorizing criminal appeals. But the holding is plainly limited to the statute governing appeals. And technically, the court recognized the appeal to be from a denial of the defendant’s motion to withdraw the plea rather than from a conviction. 871 P.2d at 54. More importantly, however, the Oklahoma appellate courts have recognized that a defendant successfully completing the deferred sentencing process cannot be treated as having been convicted of the underlying offense. Platt v. State, 2008 OK CR 20, ¶ 13, 188 P.3d 196 (Construing the comparable deferred sentencing process for drug offenders, the court finds that after the charges have been dismissed, the defendants’ guilty pleas “would not constitute prior ‘convictions’ ” impairing the right to possess firearms under Oklahoma law.) (Emphasis added.) The circumstances considered in Platt match Hankins’ situation; those in Gonseth do not.
In State v. Wetrich, 49 Kan. App. 2d 34, 38, 43-44, 304 P.3d 346 (2013), this court recognized that tire 2009 amendment to K.S.A. 2013 Supp. 21-6814(c) precluded the State from invoicing collateral estoppel to prevent the defendant from contesting his criminal history when he had already challenged it and lost in an earlier case. The result in Wetrich comes within the ambit of the amended statutory language and is consistent with the construction I suggest. The amendment embraces both those factual situations and furthers the overarching objective of seeing that a criminal defendant is properly sentenced using a legally correct criminal history score.
The procedural vehicle for a constitutional challenge to a sentence would be a petition under K.S.A. 60-1501 or a motion under K.S.A. 60-1507, permitting constitutionally based attacks on terms of incarceration or convictions. I don’t need to parse which would apply, and that determination might depend on how the issue were framed. A motion to correct an illegal sentence would not suffice to raise a constitutional argument. State v. Edwards, 281 Kan. 1334, Syl. ¶¶ 1, 2, 135 P.3d 1251 (2006) (defining illegal sentence and holding it does not include “a sentence [that] fails to conform to constitutional requirements”). But a pro se motion to correct an illegal sentence may be construed to assert claims under either K.S.A. 60-1501 or K.S.A. 60-1507 that would be consistent with the requested relief. See State v. Kelly, 291 Kan. 563, Syl. ¶ 1, 244 P.3d 639 (2010); State v. Swisher, 281 Kan. 447, 449, 132 P.3d 1274 (2006).