State v. Lawson

1

NOT DESIGNATED FOR PUBLICATION

No. 114,343


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MCCARVER LAWSON,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed May 6, 2016. Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

Before MALONE, C.J., BUSER and BRUNS, JJ.

Per Curiam: In this sentencing appeal, McCarver Lawson appeals the
constitutionality of the sentence he received upon his conviction for sexual exploitation
of a child. Lawson claims: (1) his lifetime postrelease supervision term constitutes cruel
and/or unusual punishment under the Eighth Amendment to the United States
Constitution; (2) the district court enhanced his sentence in violation of Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it used his
criminal history for sentencing purposes; and (3) the district court erroneously calculated
his criminal history score when it designated two of his pre-Kansas Sentencing
Guidelines Act (KSGA) convictions as person crimes.

2

Lawson moved for summary disposition of this appeal under Supreme Court Rule
7.041A (2015 Kan. Ct. R. Annot. 67), and we granted leave to proceed without briefing.
The State filed a response urging us to affirm Lawson's sentence. Based upon our careful
review of the record, we hold the district court did not err in sentencing Lawson.

FACTUAL AND PROCEDURAL BACKGROUND

In keeping with a plea agreement, Lawson pled guilty to one count of sexual
exploitation of a child, in violation of K.S.A. 2015 Supp. 21-5510(a)(2), after he
"unlawfully and feloniously possess[ed] any visual depiction of a child under 18 years of
age shown or heard engaging in sexually explicit conduct with the intent to arouse or
satisfy the sexual desires or appeal to the prurient intent of [himself] or any other person."
Although Lawson's criminal history revealed that he is a first-time sex offender, his
presentence investigation (PSI) report calculated his criminal history score as a B based,
in part, upon the classification of a 1985 conviction for aggravated burglary and a 1978
juvenile adjudication for aggravated robbery as person felonies.

At the sentencing hearing on June 4, 2015, Lawson did not object to his criminal
history score, and the district court sentenced him to the standard presumptive sentence
for an offender with a criminal history score of B and a conviction for a severity level 5
person felony, i.e., a prison term of 120 months. Although there was "a question as to
postrelease supervision" prior to the sentencing hearing, the parties informed the court
that the issue had been resolved "to both counsel[s'] satisfaction." Consequently, without
objection from either party, the district court ordered Lawson to serve a lifetime
postrelease supervision term.




3

Lawson timely appealed his sentence.

LIFETIME POSTRELEASE SUPERVISION

For the first time on appeal, Lawson claims his lifetime postrelease supervision
term constitutes cruel and/or unusual punishment under the Eighth Amendment to the
United States Constitution. In support of this contention, Lawson incorporates the
arguments and authorities raised by the defendant in State v. Williams, 298 Kan. 1075,
319 P.3d 528 (2014). In Williams, the defendant confined his Eighth Amendment claim
to a categorical proportionality challenge. He asserted that "mandatory lifetime
postrelease supervision is unconstitutionally disproportionate as applied to first-time
offenders over age 18 convicted of crimes involving possession of pornographic images
of a person under age 18." 298 Kan. at 1086.

At the outset, the State questions whether Lawson properly preserved this issue for
appellate review due to his failure to comply with Kansas Supreme Court Rule 6.02(a)(5)
(2015 Kan. Ct. R. Annot. 41), which requires an appellant to explain why an issue that
was not raised in the district court should be considered on appeal. See State v. Godfrey,
301 Kan. 1041, 1044, 350 P.3d 1068 (2015) (Rule 6.02[a][5] will henceforth be strictly
enforced); Williams, 298 Kan. at 1085 (cautioning future litigants to comply with Rule).
Nevertheless, we will overlook this procedural bar because the merits of the issue are
easily addressed.

Lawson's argument, based on Williams, is without merit because in Williams our
Supreme Court determined the issue adversely to him. In particular, that court found that
"[l]ifetime postrelease supervision for a first-time offender over age 18 convicted of
sexual exploitation of a child for crimes involving possession of pornographic images of
children under age 18 is not categorically disproportionate under the Eighth
Amendment." Williams, 298 Kan. 1075, Syl. ¶ 8.
4

Lawson acknowledges that our Supreme Court's ruling in Williams controls this
issue and that we are duty bound to follow Kansas Supreme Court precedent absent some
indication that the court is departing from its previous position. See State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Lawson does not cite any legal authority
which suggests that our Supreme Court is considering a departure from its holding in
Williams, and we are unaware of any change in precedent. Accordingly, we find that
Lawson's lifetime postrelease supervision term does not constitute unconstitutional cruel
and/or unusual punishment.

USE OF PRIOR CONVICTIONS TO ENHANCE SENTENCE

For his next issue, Lawson contends the district court violated his constitutional
rights and the United States Supreme Court's holding in Apprendi when it used his
criminal history to enhance his sentence without requiring the State to prove his prior
convictions to a jury beyond a reasonable doubt. This is a question of law over which we
exercise de novo review. State v. Pennington, 276 Kan. 841, 851, 80 P.3d 44 (2003).

As Lawson candidly concedes, this issue was previously considered and rejected
by our Supreme Court in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). In Ivory, the
Supreme Court held that the use of a defendant's criminal history to calculate the
presumptive KSGA sentence does not violate due process as interpreted by Apprendi.
273 Kan. at 46-48. Once again, we are duty bound to follow Kansas Supreme Court
precedent absent some indication that the court is departing from its previous position.
Meyer, 51 Kan. App. 2d at 1072. We know of no change in precedent. See State v.
Tahah, 302 Kan. 783, 795-96, 358 P.3d 819 (2015), cert. denied 136 S. Ct. 1218 (2016)
(reaffirming Ivory). Lawson's argument is not meritorious.



5

CLASSIFICATION OF PRE-KSGA OFFENSES AS PERSON FELONIES

Finally, in reliance upon State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014),
modified by Supreme Court order September 19, 2014, overruled by State v. Keel, 302
Kan. 560, Syl. ¶ 9, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016), Lawson
argues that the district court erroneously calculated his criminal history score because it
improperly classified his 1985 conviction for aggravated burglary and his 1978 juvenile
adjudication for aggravated robbery as person felonies. Whether a prior conviction should
be classified as a person or nonperson offense involves interpretation of the KSGA,
which is a question of law over which we exercise unlimited review. Keel, 302 Kan. at
571.

In Murdock, our Supreme Court held that because Kansas did not begin
classifying crimes as person or nonperson offenses until the adoption of the KSGA in
1993, district courts must classify all out-of-state convictions committed prior to the
enactment of the KSGA as nonperson offenses for criminal history scoring purposes. See
Murdock, 299 Kan. at 319. Essentially, Lawson requests that we extend the holding of
Murdock to all pre-1993 convictions.

But after Murdock was handed down, the Kansas Legislature amended K.S.A.
2014 Supp. 21-6810, effective April 2, 2015, to clarify that all prior convictions and
juvenile adjudications should receive person/nonperson designations by comparing the
crime to the comparable Kansas offense in effect on the date the defendant committed the
current crime of conviction, and the legislature specified that this amendment, which it
deemed procedural in nature, "shall be construed and applied retroactively." L. 2015, ch.
5, sec. 1(d)(2), (d)(3)(B), (e). Moreover, in Keel, our Supreme Court overruled Murdock,
finding that "a pre-KSGA conviction and/or adjudication must be classified as either a
person or nonperson offense by comparing the criminal statute under which the prior
offense arose to the comparable post-KSGA criminal statute," i.e., "the one that was in
6

effect at the time the current crime of conviction was committed." Keel, 302 Kan. at 581;
see also State v. Luarks, 302 Kan. 972, 975-76, 360 P.3d 418 (2015) (relying on Keel to
reject argument that all pre-KSGA offenses should be nonperson offenses).

Lawson committed his current crime on July 18, 2014, and at that time, the Kansas
Criminal Code scored aggravated burglary and aggravated robbery as person felonies.
See K.S.A. 2015 Supp. 21-5807(c)(3) ("[a]ggravated burglary is a . . . person felony");
K.S.A. 2015 Supp. 21-5420(c)(2) ("[a]ggravated robbery is a . . . person felony").
Accordingly, the district court did not err in classifying these offenses for criminal history
scoring purposes. Lawson raises no other objections to his criminal history score or the
district court's classification of his prior convictions and adjudications; therefore, we
affirm his sentence.

Affirmed.