State v. Herrera

1
NOT DESIGNATED FOR PUBLICATION
No. 119,427
IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,
v.
ROBERTO A. HERRERA,
Appellant.



MEMORANDUM OPINION


Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed May 24, 2019. Affirmed.



Kasper Schirer, of Kansas Appellate Defender Office, for appellant.



Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.


Before HILL, P.J., BRUNS, J., and BURGESS, S.J.



PER CURIAM: Roberto A. Herrera claims he has been sentenced illegally because
the court misused his prior domestic battery convictions to elevate his criminal history
score to a B. He relies on a statute that says prior convictions of any crime shall not be
counted in determining the criminal history category if they enhance the severity level,
elevate the classification from misdemeanor to felony, or are elements of the present crime
of conviction. Because he was convicted of two drug crimes, we hold the statute he cites
does not apply to Herrera's case.
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This case focuses on a sentencing issue.



Herrera pled no contest to one count of distribution of methamphetamine within

1,000 feet of a school and one count of possession of methamphetamine with the intent to
distribute within 1,000 feet of a school. Both crimes are drug felonies. A presentence
investigation report showed Herrera's criminal history score was B.


Herrera's criminal history included:

felony domestic battery, third conviction in five years;

two person misdemeanor counts of domestic battery; and

two person misdemeanor counts of battery.



The domestic battery charges and one of the battery charges were aggregated to a person
felony for criminal history purposes.


At his sentencing, Herrera argued the court was impermissibly "double-dipping"
by using the two misdemeanor domestic battery charges twice. They had already been
used to elevate the third domestic battery to a felony, together with another person
misdemeanor to create a person felony. In his view, they, by operation of the statute,
could not be used for his criminal history score.


The court disagreed and sentenced Herrera to 122 months in prison, the guideline
sentence for a defendant with a criminal history score of B.


We find no sentencing error.



Herrera argues the sentencing court erred in calculating his criminal history
because his misdemeanor domestic battery convictions were used to enhance a third
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domestic battery to a felony and then aggregated the three person misdemeanors to
another person felony.


Whether a sentence is illegal is a question of law over which the appellate court has
unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). A court may
correct an illegal sentence at any time. K.S.A. 2018 Supp. 22-3504(1). A defendant may
challenge a sentence even for the first time on appeal. State v. Fisher, 304 Kan. 242, 263-
64, 373 P.3d 781 (2016).



Felony sentences on the drug grid are determined based on the severity of the
crime of conviction and the defendant's criminal history. A defendant with two prior
person felony convictions has a criminal history score of B. K.S.A. 2018 Supp. 21-
6805(a).



Under the Kansas Sentencing Guidelines Act, every three prior adult convictions
of class A and class B person misdemeanors in the offender's criminal history, or any
combination thereof, shall be rated as one adult conviction of a person felony for
criminal history purposes. This is commonly referred to as aggregation. See K.S.A.
2018 Supp. 21-6811(a). Generally, domestic battery is a person misdemeanor. K.S.A.
2018 Supp. 21-5414(c)(1)(A), (B). But if the defendant is convicted of a third domestic
battery within five years, the domestic battery is a person felony. K.S.A. 2018
Supp. 21-5414(c)(1)(C).



There are, however, limits on the use of prior convictions. The Sentencing
Guidelines Act provides in K.S.A. 2018 Supp. 21-6810(d)(10) that prior convictions of
any crime shall not be counted in determining the criminal history category if they
enhance the severity level, elevate the classification from misdemeanor to felony, or are
elements of the present crime of conviction.
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Using this passage, Herrera argues K.S.A. 2018 Supp. 21-6810(d)(10) precludes
the district court from using his misdemeanor domestic battery convictions to combine
three person misdemeanors into a person felony because the misdemeanor domestic
battery convictions were already used to "elevate the classification from misdemeanor to
felony" in his felony domestic battery conviction.


With this argument, our question becomes whether the phrase "of the present

crime of conviction" applies to all three alternatives in K.S.A. 2018 Supp. 21-6810(d)(10)

or if it only applies to "are elements."



Prior cases have addressed this issue. A panel of this court has held the phrase "of
the present crime of conviction" applies to each portion of K.S.A. 2018 Supp. 21-
6810(d)(10). See State v. Fowler, 55 Kan. App. 2d 92, 408 P.3d 119 (2017), rev. granted

308 Kan. 1597 (2018). Fowler was convicted of felony domestic battery and felony
possession of methamphetamine. Fowler's primary crime of conviction was possession of
methamphetamine. Fowler's criminal history score was calculated as B based on six
aggregated person misdemeanors, including two misdemeanor domestic battery
convictions. The two misdemeanor domestic battery convictions were also used to charge
the current domestic battery as a felony. Fowler argued the charges could not also be used
to aggregate with a third person misdemeanor to elevate his criminal history score.


The Fowler court held that K.S.A. 2015 Supp. 21-6810(d)(9) "only prohibits the
use of a prior conviction in calculating a defendant's criminal history score when such a
conviction is used to enhance the severity level, to elevate the classification, or as an
element of the same present crime of conviction." Fowler, 55 Kan. App. 2d at 99.
Because Fowler's present crime of conviction was possession of methamphetamine, the
district court could use the prior misdemeanor domestic battery convictions to (1)
enhance his current domestic battery to a felony and (2) aggregate with a third person
misdemeanor to elevate his criminal history. 55 Kan. App. 2d at 99.
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Other panels of this court have made similar rulings. In each case, the past
convictions used to enhance a misdemeanor to a felony and aggregate three person
misdemeanors to a person felony were not present crimes of conviction. See State v.
Omar-Cruz, No. 110,698, 2014 WL 6909677, at *4-5 (Kan. App. 2014) (unpublished
opinion); State v. Temmen, No. 104,326, 2011 WL 1878141, at *1-3 (Kan. App. 2011)
(unpublished opinion); State v. Smith, No. 92,312, 2005 WL 1089054, at *1-2 (Kan. App.

2005) (unpublished opinion).



The statute controls this issue. A plain reading of K.S.A. 2018 Supp. 21-

6810(d)(10) does not support Herrera's argument. If the "of the present crime of
conviction" only applied to the last alternative in the statute, then the first two alternatives
do not make sense. There would be no guidance in the language of the statute for when
prior convictions could not be used "if they enhance the severity level" or "elevate the
classification from misdemeanor to felony." See K.S.A. 2018 Supp. 21-6810(d)(10).
Herrera argues this court should essentially write in "any offense" following the first two
alternatives. But he provides no support that his interpretation was the intent of the
Legislature.


In our view, K.S.A. 2018 Supp. 21-6810(d)(10) means prior convictions of any
crime shall not be counted in determining the criminal history category if they elevate the
classification from misdemeanor to felony of the present crime of conviction. Because
Herrera's present crimes of conviction were two drug crimes, his prior felony domestic
battery and misdemeanor domestic batteries could be used to calculate his criminal
history score.



The district court did not err by sentencing Herrera with a criminal history score of

B.



Affirmed.