State v. Arriaga

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,976
113,977

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FELIPE ARRIAGA,
Appellant.

MEMORANDUM OPINION


Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed July 22, 2016.
Affirmed.

Razmi M. Tahirkheli, of Tahirkheli Law Office, of Guymon, Oklahoma, for appellant.

Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

Per Curiam: Felipe Arriaga was sentenced to a controlling sentence of 142
months' imprisonment for several crimes. Arriaga's presentence investigation (PSI) report
reflected a criminal history score of A, based partly on two juvenile adjudications.
Arriaga later filed a motion to correct an illegal sentence, arguing the court should not
have used his juvenile adjudications in calculating his criminal history score. The court
denied his motions. Arriaga appeals, claiming the district court erred in considering his
juvenile adjudications because (1) his juvenile adjudications had decayed; and (2) using
juvenile adjudications to calculate an adult defendant's criminal history score goes against
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the policy goals of juvenile proceedings and violates due process and the prohibition
against ex post facto laws. We affirm.

On June 26, 2013, in case No. 13CR407, the State charged Arriaga with one count
of aggravated robbery, a level 3 person felony; one count of conspiracy to commit
aggravated robbery, a level 5 person felony; one count of possession with intent to
distribute, a level 2 drug felony; one count of conspiracy to commit possession with
intent to distribute methamphetamine, a level 2 drug felony; one count of aggravated
battery, a level 7 person felony; and one count of aggravated assault, a level 7 person
felony. Arriaga later pled no contest to an amended complaint with one count of
conspiracy to commit aggravated robbery and one count of aggravated battery.

Arriaga's PSI report showed he had a criminal history score of A. His score was
based in part on two juvenile person felony adjudications for burglary of a dwelling from
Moore County, Texas in 2000. The district court sentenced Arriaga to 130 months in
prison for conspiracy to commit aggravated robbery and 12 months in prison for
aggravated battery, with the sentences to run consecutively.

Also on June 26, 2013, in case No. 13CR408, the State charged Arriaga with one
count of criminal possession of a firearm by a convicted felon, a level 8 nonperson
felony; one count of possession of methamphetamine, a level 5 drug felony; and one
count of possession of drug paraphernalia, a class A nonperson misdemeanor. Arriaga
pled no contest to one count of criminal possession of a firearm by a convicted felon, and
the State dropped the other two charges. Arriaga's PSI report again showed a criminal
history score of A, based on the same two juvenile person felony adjudications. The
district court sentenced Arriaga to 21 months in prison, to run concurrently with his
sentence in case number 13CR407.

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The district court held a sentencing hearing for both cases on February 20, 2014.
At the hearing, Arriaga agreed he had a criminal history score of A. He also admitted he
committed all of the offenses listed in his PSI reports. He did, however, object to the use
of his juvenile adjudications in calculating his criminal history score.

On August 5, 2014, Arriaga filed a pro se motion to appeal his sentences in both of
his cases. In his motion, Arriaga stated he felt his sentences were too harsh based on the
use of his juvenile adjudications, and he requested a reduction of his sentences.

Arriaga also filed a number of pro se motions to correct an illegal sentence. He
filed two motions in case number 13CR407: one on December 3, 2014 and one on
January 30, 2015. In case number 13CR408, he filed three motions: one on December 3,
2014, one on January 20, 2015, and one on February 4, 2015. Every motion was
identical. In his motions, Arriaga argued the district court erred in using his juvenile
adjudications in calculating his criminal history score.

On February 24, 2015, the district court issued a memorandum decision and order
denying Arriaga's motions in both cases. The court found Arriaga's juvenile adjudications
were properly used in calculating his criminal history score pursuant to K.S.A. 2012
Supp. 21-6810. Arriaga's new appointed counsel for appeal filed a notice of appeal in
both cases on March 6, 2015.

On March 5, 2015 Arriaga filed a pro se motion to reconsider in both cases.
Arriaga raised the same arguments as in his motions to correct an illegal sentence. On
March 24, 2015, the district court denied Arriaga's motion to reconsider. On April 13,
2015, Arriaga filed a pro se appeal in both cases.

Arriaga argues the district court erred in calculating his criminal history
score by using two of his juvenile adjudications. He first argues the adjudications
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should have decayed. Additionally, he argues the use of juvenile adjudications in
calculating adult criminal history scores contravenes the purpose of juvenile
proceedings and violates due process and the prohibition against ex post facto
laws.

The State responds that the district court properly used Arriaga's juvenile
adjudications in calculating his criminal history score. First, the State contends Arriaga's
adjudications could not decay because they were person felonies. Second, it asserts the
Kansas Supreme Court has already ruled that district courts may properly use juvenile
adjudications in calculating a defendant's criminal history score. State v. LaMunyon, 259
Kan. 54, 911 P.2d 151 (1996).

Standard of review

Interpretation of a sentencing statute is a question of law, and the standard of
review is unlimited. State v. Phillips, 299 Kan. 479, 494, 325 P.3d 1095 (2014). Whether
a sentence is illegal within the meaning of K.S.A. 22-3504 is also a question of law over
which the appellate court has unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d
1256 (2014). A sentence is illegal if: (1) a court imposes it without jurisdiction; (2) it
does not conform to the applicable statutory provision, either in character or the term of
authorized punishment; or (3) it is ambiguous with respect to the time and manner in
which it is to be served. 299 Kan. at 8.

The Kansas Sentencing Guidelines Act (KSGA) controls the sentencing of
criminal defendants. The KSGA clearly provides that district courts may use juvenile
adjudications in determining a defendant's criminal history score. K.S.A. 2012 Supp. 21-
6810(a) states, in relevant part:

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"Criminal history categories contained in the sentencing guidelines grids are based on the
following types of prior convictions: . . . person felony juvenile adjudications, nonperson
felony juvenile adjudications, . . . person misdemeanor juvenile adjudications, nonperson
class A misdemeanor juvenile adjudications, . . . select class B nonperson misdemeanor
juvenile adjudications and convictions and adjudications for violations of municipal
ordinances or county resolutions which are comparable to any crime classified under the
state law of Kansas as a person misdemeanor, select nonperson class B misdemeanor or
nonperson class A misdemeanor."

The KSGA also provides several circumstances under which juvenile adjudications may
decay, after which courts may no longer use them to calculate a defendant's criminal
history score. K.S.A. 2012 Supp. 21-6810(d)(4) provides, in relevant part:

"Except as otherwise provided, a juvenile adjudication will decay if the current crime of
conviction is committed after the offender reaches the age of 25, and the juvenile
adjudication is for an offense:
. . . .
"(B) committed on or after July 1, 1993, which would be a nondrug severity level
6, 7, 8, 9 or 10, a drug severity level 4 felony for an offense committed on or after July 1,
1993, but prior to July 1, 2012, or a drug severity level 5 felony for an offense committed
on or after July 1, 2012, if committed by an adult."

Not all juvenile adjudications are eligible for decay, however. As K.S.A. 2012 Supp. 21-
6810(d)(3) states: "There will be no decay factor applicable for . . . a juvenile
adjudication for an offense which would constitute a person felony if committed by an
adult." Furthermore, under K.S.A. 2012 Supp. 21-6811(e), a district court must use out-
of-state juvenile adjudications in classifying a defendant's criminal history score.

Under the KSGA, Arriaga's juvenile adjudications were not eligible for decay. The
two adjudications which the district court used to calculate Arriaga's criminal history
score of A were both for burglary of a dwelling. Under the Kansas burglary statute,
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burglary of a dwelling is a person felony. K.S.A. 2012 Supp. 21-5807(a)(1) and
(c)(1)(A). Arriaga's two adjudications were for an offense that would constitute a person
felony if committed by an adult. Under K.S.A. 2012 Supp. 21-6810(d)(3), such
adjudications are not eligible for decay. Consequently, regardless of how old Arriaga was
at the time of his current crime of conviction or the severity level of his juvenile
adjudications, the district court was authorized by statute to use these two juvenile
adjudications to calculate Arriaga's criminal history score. Because the district court's
actions were authorized by statute, Arriaga's sentence is not illegal, and the district court
did not err.

Arriaga next argues that since juvenile adjudications are not considered criminal
convictions under Kansas law, they should not be used to calculate a defendant's criminal
history score. He first argues juvenile adjudications are not criminal convictions, and
using adjudications to increase criminal penalties contravenes the general policy goals of
juvenile proceedings. Second, he argues using juvenile adjudications to calculate a
criminal history score violates due process. Finally, he argues doing so violates the
prohibition against ex post facto laws. As the State points out, every argument presented
by Arriaga was rejected by our Supreme Court in LaMunyon.

In LaMunyon, our Supreme Court acknowledged that "it is well established that a
juvenile adjudication is not a 'criminal conviction.'" 259 Kan. at 59. Nonetheless, the
court went on to note that "the Kansas Legislature was aware that a juvenile adjudication
was not a criminal conviction" when it "specif[ied] in the KSGA that 'criminal history'
includes specific juvenile adjudications and criminal convictions." 259 Kan. at 59.
Furthermore, "[t]he mere fact that a juvenile adjudication [was] not a criminal conviction
[did] not prohibit using a juvenile adjudication in calculating a criminal history score for
purposes of sentencing an adult under the KSGA." 259 Kan. at 59. Thus, just because a
juvenile adjudication is not a conviction does not mean a district court cannot use it to
calculate a defendant's criminal history score.
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Arriaga also argues that using his juvenile adjudications to calculate his criminal
history score violates the prohibition against ex post facto laws. More specifically,
Arriaga includes a recitation of what an ex post facto law is, but he does not explain how
the KSGA violates the prohibition against ex post facto laws in his case. Based on his
own description, however, there is no ex post facto violation in this case.

The juvenile adjudications at issue appear to have occurred after the effective date
of the KSGA. "An ex post facto violation occurs when a new law is retroactively applied
to events that occurred before its enactment and the new law disadvantages the offender
affected by it." LaMunyon, 259 Kan. at 65. The Kansas Legislature enacted the KSGA in
1993. Arriaga's juvenile adjudications were in 2000, and Arriaga does not argue or
provide any evidence that the crimes were actually committed prior to 1993.
Furthermore, burglary has a 5-year statute of limitations in Texas. Tex. Crim. Proc. Code
Ann. Art. 12.01 (Vernon 2015); 1999 Tex. Sess. Law Serv. Ch. 39 (Vernon). Because the
crimes at issue in Arriaga's adjudications appear to have occurred after the passage of the
KSGA, the KSGA is not acting retroactively. Therefore, there can be no ex post facto
violation.

Even if the burglaries had occurred prior to the passage of the KSGA, there is still
no ex post facto violation. In order for the KSGA to violate the prohibition against ex
post facto laws, it must punish juvenile adjudications that occurred before its year of
enactment. As our Supreme Court pointed out in LaMunyon,

"[T]he KSGA does not operate retrospectively to punish the activity which occurred prior
to the effective date of the KSGA and therefore does not violate the prohibition against
ex post facto laws.
". . . The defendant is not being punished for his juvenile adjudications. The
adjudications are merely being used to calculate the defendant's criminal history score for
the purpose of determining the guidelines sentence for his current offense. That the
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guidelines sentence is greater upon inclusion of the juvenile adjudications in his criminal
history score than it would be without considering the adjudications does not mean the
defendant is being punished for the prior adjudications. The defendant's ineligibility for
sentence conversion is not a punishment for his prior juvenile adjudications but rather is a
result of his current status as a repeat offender. The consideration of juvenile
adjudications which occurred before the effective date of the KSGA in calculating an
offender's criminal history score under the KSGA is not a violation of the prohibition
against ex post facto laws." 259 Kan. at 67.

Under either analysis, then, Arriaga's ex post facto argument fails.

In summary, the district court properly used Arriaga's juvenile adjudications in
calculating his criminal history score. Under K.S.A. 2012 Supp. 21-6810, Arriaga's
juvenile adjudications for offenses which would have been person felonies if committed
by an adult did not decay. Furthermore, our Supreme Court has already ruled in
LaMunyon that juvenile adjudications may be used in calculating a defendant's criminal
history score without violating due process or prohibitions against ex post facto laws. We
are duty bound to follow Kansas Supreme Court precedent absent some indication the
court is departing from its previous position. State v. Belone, 51 Kan. App. 2d 179, 211,
343 P.3d 128 (2011), rev. denied 302 Kan. __ (2015). Arriaga has not pointed out any
such indication. For these reasons, the district court did not err in calculating Arriaga's
criminal history score.

Affirmed.