State v. Thacker

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No. 107,549

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CECIL THACKER,
Appellant.


SYLLABUS BY THE COURT

1.
Interpretation of a sentencing statute is a question of law, and the standard of
review is unlimited. Under the fundamental rule of statutory construction, the intent of
the legislature governs when that intent can be ascertained from the statute.

2.
Prior convictions of a crime are not counted in determining a defendant's criminal
history category if they are elements of the present crime of conviction.

3.
The elements of a crime are defined as the constituent parts of a crime—usually
consisting of the actus reus, mens rea, and causation—that the prosecution must prove to
sustain a conviction.

4.
In Kansas, all crimes are statutory and the elements necessary to constitute a crime
must be gathered wholly from the statute.

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5.
Kansas courts look to the plain meaning of the statutory language to determine
whether a prior conviction is an element of the defendant's present crime of conviction.

6.
The plain language of the unlawfully tampering with electronic monitoring
equipment statute, K.S.A. 21-4232(a), requires only proof that the defendant was on
parole, not proof of the conviction that created that status.

Appeal from Shawnee District Court; CHERYL RIOS KINGFISHER, judge. Opinion filed
January 18, 2013. Affirmed.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.

STANDRIDGE, J.: Cecil Thacker appeals from the sentence imposed by the district
court after he pled no contest to attempted tampering with an electronic monitoring
device. Thacker claims his sentence was illegal because the underlying felony conviction
for which he was being monitored was included in his criminal history for sentencing on
the attempted tampering charge. For the reasons stated below, we hold the district court
did not err in including Thacker's underlying conviction in his criminal history score for
sentencing on the attempted tampering charge.




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FACTS

In 2009 Thacker was placed on parole for a conviction of aggravated indecent
liberties with a child less than 14 years old. As a condition of his parole, Thacker was
required to wear a GPS monitoring bracelet on his leg at all times. On May 10, 2011, a
special agent with the department of corrections caught Thacker without his bracelet on.

On June 28, 2011, the State charged Thacker with one count of unlawfully
tampering with electronic monitoring equipment. Thacker later pled no contest to
attempted tampering with an electronic monitoring device. The presentence investigation
report listed Thacker's criminal history score as "B." At sentencing, Thacker challenged
this criminal history score, arguing that the conviction of aggravated indecent liberties
with a child should not be counted as part of his criminal history for purposes of
sentencing because it was the conviction for which he was being monitored and, thus, an
element of his current offense of unlawfully tampering with electronic monitoring
equipment. The district court disagreed. Based on its own independent research, the court
found no reason to exclude the prior conviction for purposes of scoring the present crime.
Thereafter, the district court calculated Thacker's criminal history classification as "B"
based on the crimes in the presentence investigation report. The district court denied
Thacker's motion for dispositional departure and sentenced him to the presumptive
standard sentence of 19 months in prison with 12 months' postrelease supervision.

ANALYSIS

As he did below, Thacker argues on appeal that his conviction for aggravated
indecent liberties should not have been included in his criminal history score under
K.S.A. 2010 Supp. 21-4710(d)(11) because the conviction is an element of his present
crime of conviction. Because the charge of attempted unlawfully tampering with
electronic monitoring equipment requires the defendant to be on parole (or under a court
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order), Thacker claims this prior conviction for which he was on parole is an element of
the crime.

Interpretation of a sentencing statute is a question of law, and the standard of
review is unlimited. State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011). Under the
fundamental rule of statutory construction, the intent of the legislature governs when that
intent can be ascertained from the statute. When a statute is plain and unambiguous, the
court must give effect to the intention of the legislature, rather than determine what the
law should or should not be. State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).
As a general rule, a criminal statute is strictly construed in favor of the accused, meaning
the court must construe any ambiguity in the statute's language in favor of the accused.
This rule of strict construction, however, must be reasonable and sensible to effect
legislative design and intent. State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010).

Prior convictions of a crime are not counted in determining a defendant's criminal
history category if they "are elements of the present crime of conviction." K.S.A. 2010
Supp. 21-4710(d)(11). The elements of a crime are defined as "[t]he constituent parts of a
crime—[usually] [c]onsisting of the actus reus, mens rea, and causation—that the
prosecution must prove to sustain a conviction." Black's Law Dictionary 597 (9th

ed.
2009). In Kansas, "'all crimes are statutory and the elements necessary to constitute a
crime must be gathered wholly from the statute.'" State v. Smith, 245 Kan. 381, 396, 781
P.2d 666 (1989), disapproved on other grounds by State v. Schoonover, 281 Kan. 453,
133 P.3d 48 (2006).

Because the real question is whether the conviction was an element of the present
crime of conviction "pursuant to the statutory definition," it does not matter what was
included in the charging document or in the statement of facts at the plea hearing. State v.
Lenz, No. 95,498, 2007 WL 1309604, at *1 (Kan. App. 2007) (unpublished opinion).
Thus, in deciding similar issues under K.S.A. 2010 Supp. 21-4710(d)(11), Kansas courts
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have looked to the plain meaning of the statutory language to determine whether a prior
conviction is an element of the defendant's present crime of conviction.

In State v. Taylor, 262 Kan. 471, 479, 939 P.2d 904 (1997), abrogated on other
grounds by State v. Berreth, 294 Kan. 98, 124, 273 P.3d 752 (2012), our Supreme Court
held that the defendant's underlying felony conviction for which he was in custody at the
time of his escape was an element of his present aggravated escape from custody charge
and therefore could not be used for criminal history purposes. This conclusion turned on
the language of the statute in place at the time, which required that the escapee be "in
lawful custody upon a charge or conviction of felony." K.S.A. 21-3810(a) (Furse 1995);
Taylor, 262 Kan. at 479.

After Taylor was decided, however, the legislature amended the statutory scheme
to include alternative categories of escape from custody, so that one category still
required the defendant be held in lawful custody "upon a charge or conviction of a
felony" while another only required the defendant be in lawful custody "upon
incarceration at a state correctional institution . . . while in the custody of the secretary of
corrections." K.S.A. 2006 Supp. 21-3810(a); see Lenz, 2007 WL 1309604, at *2. In State
v. Brown, 32 Kan. App. 2d 24, 80 P.3d 404, rev. denied 276 Kan. 970 (2003), this court
examined the amended escape from custody statute and concluded that the language used
in the new category was substantially different from that of the old statute in Taylor.
Specifically, the court found that "it would belie the plain meaning of that section to
require proof of conviction when criminal elements must be derived only from the
statute." Brown, 32 Kan. App. 2d at 27. The court ultimately held that the statute required
proof of Brown's in-custody status, not proof of the conviction that created that status, so
the district court correctly included the defendant's prior convictions in his criminal
history score. 32 Kan. App. 2d at 27.

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In State v. Perez-Moran, 276 Kan. 830, 837-38, 80 P.3d 361 (2003), our Supreme
Court approved of the Brown court's reasoning. See Lenz, 2007 WL 1309604, at *2. The
court rejected the defendant's argument that his prior convictions were necessary to
establish that he was in the custody of the Secretary of Corrections and thus were
elements of battery against a law enforcement officer. Perez-Moran, 276 Kan. at 831-32,
835. Specifically, the court found the statute in that case defined attempted battery
against a law enforcement officer as battery "'committed against a state correctional
officer or employee by a person in custody of the secretary of corrections, while such
officer or employee is engaged in the performance of such officer's . . . duty.'" (Emphasis
added.) K.S.A. 2002 Supp. 21-3413(a)(2); Perez-Moran, 276 Kan. at 833. The court
concluded the plain language of the statute only required the State to prove an inmate was
in custody, not why the inmate was in such custody. 276 Kan. at 835. Distinguishing the
case from Taylor, the court observed that "aggravated escape from custody required that
the defendant be 'in lawful custody upon a charge or conviction of a felony,' while the
charge in this case, battery against a law enforcement officer, requires only that the
defendant be 'in custody of the secretary of corrections'" as an essential element of the
offense. 276 Kan. at 836-37. The court relied on the Brown court's interpretation of
"statutory language similar to that in this case," noting that the post-Taylor amendments
to the escape from custody statute made clear that the legislature made a distinction
between being held in the custody of the Secretary of Corrections and being held in
lawful custody upon a charge or conviction of a felony. 276 Kan. at 837-38.

In Thacker's case, the present crime of conviction is unlawfully attempting to
tamper with electronic monitoring equipment under K.S.A. 21-4232(a) (Torrence 2007).
This statute provides that "[u]nlawfully tampering with electronic monitoring equipment
is intentionally removing, disabling, altering, tampering with, damaging or destroying
any electronic monitoring equipment used pursuant to court order or as a condition of
parole." The plain language of the statute identifies the elements of the crime as (1)
intentionally removing, disabling, altering, tampering with, damaging, or destroying (2)
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any electronic monitoring equipment used (3) pursuant to court order or as a condition of
parole. Stated differently, the elements are (1) the act of intentionally tampering with
electronic monitoring equipment, (2) by someone under a court order or who is on parole,
(3) which requires him or her to wear electronic monitoring equipment.

Just as our Supreme Court did in Perez-Moran, we use our state courts'
interpretation of "statutory language similar to that in this case" to determine whether the
plain language of the statute at issue includes a prior conviction as an element of the
crime. As in Brown and Perez-Moran, the plain language of the unlawfully tampering
with electronic monitoring equipment statute requires only proof of Thacker's status of
being on parole, not proof of the conviction that created that status. See Brown, 32 Kan.
App. 2d at 27. Unlike the statute in Taylor, the statute here does not further define
"parole" using the words "upon a charge or conviction." See Taylor, 262 Kan. at 479. As
the post-Taylor amendments to the escape from custody statute demonstrate, the
legislature is well aware of how to make a conviction an element of a crime but clearly
chose not to do so in K.S.A. 21-4232(a) (Torrence 2007). See Lenz, 2007 WL 1309604,
at *2. Thus, the State need only prove that Thacker was on parole, not why he was on
parole. See Perez-Moran, 276 Kan. at 835.

Our conclusion that the conviction is not included in the statutory definition of the
crime in this case is bolstered by Thacker's own citation to State v. Loudermilk, 221 Kan.
157, 160, 557 P.2d 1229 (1976), in which the court noted that "where a prior conviction
is a necessary element of the crime, the fact of prior conviction is contained in the
statutory definition of the crime rather than in the penalty section of the statute."
Furthermore, and despite Thacker's arguments to the contrary in his brief, the elements of
a crime are "gathered wholly from the statute," so neither the language used in the
complaint nor the factual basis for the crime presented at the plea hearing are relevant to
our determination. See Smith, 245 Kan. at 396.

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As a final argument, Thacker contends that his case is similar to State v. Pottoroff,
32 Kan. App. 2d 1161, 96 P.3d 280 (2004). In that case, the State argued, just as it does
here, the failure to register as a sex offender statute did not expressly require a conviction
to prove the defendant was required to register, but the court rejected that argument and
found the conviction that created the registration requirement was "necessarily" an
element of failure to register and thus could not be counted in the defendant's criminal
history score. 32 Kan. App. 2d at 1165-67. However, the court's reasoning in Pottoroff is
distinguishable because it found the entire statutory scheme at issue was dependent on the
statutory definitions of "offender," all of which required a conviction. 32 Kan. App. 2d at
1166-67. The unlawfully tampering with electronic monitoring equipment statute at issue
here, however, is not dependent on any definitions. Unlike Pottoroff, there is no
definition of "parole" provided anywhere in the statutory scheme, much less any wording
requiring a "conviction." Likewise, Thacker's citation to State v. Vontress, 266 Kan. 248,
260, 970 P.2d 42 (1998), disapproved on other grounds by State v. Schoonover, 281 Kan.
453, 133 P.3d 48 (2006), is misplaced because that case addressed the issue of calculating
the criminal history score when multiple convictions arise out of the same complaint,
which is not an issue in Thacker's case. In addition, the criminal possession of a firearm
statute discussed in Vontress actually required the crime be committed "by a person who,
within the preceding five years has been convicted of a felony." (Emphasis added.)
K.S.A. 21-4204(a)(3) (Furse 1995); see Vontress, 266 Kan. at 259.

In sum, we find Thacker's prior conviction was not an element of the present crime
and therefore was properly included in his criminal history classification.

Affirmed.