State v. Morris

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NOT DESIGNATED FOR PUBLICATION

No. 111,783

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CRAIG MORRIS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; FAITH MAUGHAN, judge. Opinion filed January 22, 2016.
Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., HILL and STANDRIDGE, JJ.

Per Curiam: Craig Morris appeals the district court's order revoking his probation
and subsequent order that he serve his underlying prison sentence. He argues that the
district court abused its discretion by imposing his underlying sentence. Morris also
argues for the first time on appeal that his original sentence is illegal because his assault
and battery convictions prior to 1993 were misclassified and resulted in the wrong
criminal history score.


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FACTS

The following is a summary of the facts of Morris' underlying conviction as stated
in the preliminary hearing in this case. On July 28, 2012, Morris and his girlfriend, R.H.,
were fighting. According to R.H., she left the apartment because Morris hit her in the
back. As soon as R.H. returned, Morris grabbed her by the hair and threw her down.
Morris started hitting, kicking, and choking R.H. R.H. said Morris accused her of
sleeping with somebody and told her to "go get in bed." R.H. complied with Morris'
order. Next, R.H. complied with Morris' request for oral sex, and the two had intercourse
in the bedroom. R.H. said she agreed to oral sex and intercourse in order to get the
beating to stop. But R.H. testified that Morris continued hitting her after they had
intercourse. Thereafter, Morris told R.H. to give him oral sex again, and she did.
Afterward, Morris and R.H. had intercourse again. When Morris left for work R.H. called
911 to report what had happened.

The State charged Morris with two counts of rape, two counts of aggravated
criminal sodomy, two counts of aggravated battery, and one count of criminal threat. On
October 22, 2012, Morris pled guilty to two counts of aggravated battery and one count
of criminal threat as a part of a plea agreement. In exchange for his pleas, the other
counts were dismissed. During the sentencing hearing, the district court made a finding
that Morris had a criminal history score of D. Morris did not object to his criminal history
score. The district court sentenced Morris to a total underlying prison sentence of 46
months and placed him on probation for 24 months.

A probation violation warrant was filed on November 6, 2013. The warrant
alleged that on October 31, 2013, Morris committed the offense of domestic violence
battery. The terms of his probation required him to obey the laws of the United States,
Kansas, and any other jurisdiction to which he may have been subject. The district court
held a probation violation hearing on January 10, 2014. J.S., the alleged victim, testified
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at the probation revocation hearing. J.S. said that at the time of the incident she and
Morris lived together and had been in a relationship for more than 2 1/2 months. On the
morning of October 31, 2013, Morris came home around 8:30. Around the same time,
J.S. received a text message from her ex-boyfriend. Morris asked who was texting her.
J.S. lied and told Morris that it was her sister. J.S. testified that Morris tried to take the
phone, which resulted in the pair wrestling to gain possession of it. According to J.S.,
Morris grabbed her by the hair and dragged her into the bedroom. She said Morris threw
her on the bed and began going through her phone. J.S. testified that she kept trying to
take the phone away until Morris pinned her down on the bed with his knees. J.S. also
testified that when she tried to take her phone back, Morris hit her in the mouth causing
her lip to swell up.

Morris also testified at the probation revocation hearing. Morris denied the
allegation that he committed domestic violence battery. He stated that he obtained a
Protection From Abuse (PFA) order against J.S. on October 30, 2013, based on an
incident the week before when J.S. slapped him and J.S.'s son threatened to "get his
buddies to beat [Morris] up." Morris said he slept across the street at his friend's
residence on the night of the incident to avoid a conflict with J.S.

With regard to the events of October 31, 2013, Morris admitted getting J.S.'s
phone from her but testified that he never dragged J.S. by the hair and never put his hands
on J.S. to get her phone. According to Morris, the phone was in J.S.'s hand while she was
lying on the couch, and Morris grabbed it to call his brother. Morris explained that the
couple shared J.S.'s phone when he ran out of minutes on his government phone. After he
grabbed the phone, he saw J.S. had been calling her ex-boyfriend. While he was looking
at J.S.'s phone, Morris said J.S. attempted to get the phone back by reaching around and
under Morris, but he kept the phone away from her. When asked about J.S.'s swollen lip,
Morris responded that she must have hit herself in the lip when trying to retrieve her
phone.
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Based on these facts, the district court found Morris violated his probation by
committing the offense of domestic violence battery. After the court made its finding that
Morris had violated the terms and conditions of his probation, Morris suggested several
options the district court could consider in place of imposing the underlying sentence.
Morris asked the court to consider either reinstating probation, placing him in residential
or field services, modifying the underlying sentence, or applying House Bill 2170.
Notwithstanding the options presented by Morris, the district court ultimately decided to
impose Morris' original prison sentence of 46 months.

ANALYSIS

1. Revocation

Once the district court finds there has been a violation of the conditions of
probation, "the decision to revoke probation rests in the sound discretion of the district
court." State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). Judicial discretion
is abused if judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an
error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256
P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). A decision is arbitrary, fanciful, or
unreasonable if, in light of the evidence, no reasonable person would have taken the view
adopted by the district court. 292 Kan. at 550. The burden of demonstrating an abuse of
discretion is on the party alleging the abuse. State v. Burnett, 300 Kan. 419, 449, 329
P.3d 1169 (2014).

Here, Morris does not appeal the district court's finding that he violated his
probation by committing domestic violence battery. Instead, Morris argues the court
abused its discretion by revoking his probation and imposing his underlying sentence. In
support of his argument that the court improperly imposed his prison sentence, Morris
notes that this was his first probation violation and that he took steps to avoid domestic
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altercations by obtaining a PFA order before the incident. Morris also argues that he
could still be successful on probation or could benefit from community treatment
programs.

Other than asking this court to reweigh the evidence at the disposition hearing,
Morris does not direct us to any errors of fact or law underlying the district court's
decision not to reinstate his probation. In light of Morris' own testimony at the revocation
hearing establishing he violated the conditions of his probation and the absence of any
good reason in the record for concluding the district court's decision was arbitrary,
fanciful, or unreasonable, we conclude the district court was well within its discretion to
revoke Morris' probation and order him to serve his underlying sentence.

2. Criminal history

Morris argues that he received an illegal sentence because his pre-Kansas
Sentencing Guidelines Act (KSGA) assault and battery convictions were classified as
person misdemeanors in the presentence investigation report when they should have been
classified as nonperson offenses. "Whether a prior conviction should be classified as a
person or nonperson offense involves the interpretation of the KSGA. Interpretation of a
statute is a question of law over which appellate courts have unlimited review." State v.
Keel, 302 Kan. 560, 571, 357 P.3d 251 (2015), cert. denied __ U.S. __ (January 11,
2016). In this case, Morris' convictions include several convictions that are pre-KSGA.

The State responds to Morris' argument by noting that he did not raise an objection
to his criminal history score at sentencing; thus, even if there was error, Morris invited it
by not lodging an objection at the time of his sentencing.

Generally, issues not raised to the district court may not be raised on appeal. State
v. Brown, 300 Kan. 565, 590, 331 P.3d 797 (2014). Also, a litigant may not invite error
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and then complain of the error on appeal. See State v. Divine, 291 Kan. 738, 742, 246
P.3d 692 (2011). The Kansas Supreme Court held, however, stipulating or failing to
object to a criminal history score "[does] not bar a defendant from appealing the legal
effect of prior convictions upon the calculation of his or her criminal history score." Keel,
302 Kan. at 571. Thus, Morris can challenge his sentence as illegal for the first time on
appeal.

Morris also failed to appeal his sentencing within the 14 days required by statute.
K.S.A. 2014 Supp. 22-3608(c). Instead, Morris raises this sentencing issue for the first
time after his probation has been revoked and underlying sentence imposed. Generally,
this also would prevent Morris from appealing his sentence because if an appeal is not
filed within the time period prescribed by statute, this court lacks jurisdiction and must
dismiss the case. See State v. Hemphill, 286 Kan. 583, 588, 186 P.3d 777 (2008).
However, K.S.A. 22-3504(1) provides that a court may correct an illegal sentence at any
time. A defendant may challenge his or her sentence as being illegal even after failing to
challenge the sentence on direct appeal. See State v. Williams, 298 Kan. 1075, 1077, 319
P.3d 528 (2014). Appellate courts may even correct illegal sentences sua sponte. State v.
Kelly, 298 Kan. 965, 975-76, 318 P.3d 987 (2014). This court is duty bound to follow
Kansas Supreme Court precedent. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d
424 (2005). In conformity with Keel and Williams, we find Morris' challenge to the
classification of his pre-KSGA convictions under K.S.A. 22-3504(1) is properly before
this court.

On the merits, the issue presented is whether Morris' pre-KSGA misdemeanor
assault and battery convictions were properly scored as person offenses under the KSGA.
Scoring under the KSGA is based on two factors: the severity level of the current crime
of conviction and the defendant's criminal history score. K.S.A. 2014 Supp. 21-6804(c).
In scoring criminal history under the KSGA, a distinction is made between person and
nonperson crimes, with person crimes generally being weighted more heavily than
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nonperson crimes. State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014), modified
by Supreme Court order September 19, 2014, overruled by State v. Keel, 302 Kan. 560,
357 P.3d 251 (2015). The presentence investigation report accepted by the court and
agreed to by the parties indicates that Morris had in-state battery convictions in
September 1987 and December 1992, both charged under K.S.A. 21-3412 (Ensley 1988),
and one in-state assault conviction in December 1992 charged under K.S.A. 21-3408
(Ensley 1988). Both battery convictions and the assault conviction were classified as
person misdemeanors for criminal history purposes in this case.

Morris argues that the pre-KSGA convictions for battery and assault were
incorrectly classified as person misdemeanors because, at the time of these convictions,
Kansas' assault and battery statutes did not differentiate between person and nonperson
crimes. In Murdock, the Kansas Supreme Court found that when calculating a defendant's
criminal history, all out-of-state crimes committed prior to the enactment of the KSGA in
1993 must be classified as nonperson offenses. 299 Kan. 312, Syl. ¶¶ 4-5. Here, Morris
argues that the reasoning in Murdock applies to all pre-KSGA convictions and, therefore,
his pre-KSGA in-state convictions must be classified as nonperson offenses. The court's
holding in Murdock, however, was overruled in Keel, a decision issued by the Kansas
Supreme Court on August 28, 2015, after Morris filed his brief in 2014. Keel, 302 Kan. at
589. Under Keel, a prior crime's classification as person or nonperson is determined
based on the classification in effect for the comparable Kansas offense at the time the
current crime of conviction was committed. 302 Kan. at 589-90.

In determining what constitutes a comparable offense under the KSGA, the
essential question is whether the offenses are similar in nature and cover similar conduct.
State v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 784 (2010). The statutes need only
to be comparable, not identical. State v. Williams, 299 Kan. 870, 875, 326 P.3d 1070
(2014). Also, when a statute governing a defendant's prior conviction contains a single set
of elements, the prior crime may be used for sentencing purposes as long as the elements
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of the prior crime are the same as or narrower than the later offense. State v. Dickey, 301
Kan. 1018, 1037, 350 P.3d 1054 (2015).

Morris' battery convictions occurred in 1987 and 1992. Morris was convicted
under K.S.A. 21-3412 (Ensley 1988), which states: "Battery is the unlawful, intentional
touching or application of force to the person of another, when done in a rude, insolent or
angry manner."

The Kansas battery statute in force in July 2012 when Morris committed the
current offense defines battery as "(1) [k]nowingly or recklessly causing bodily harm to
another person; or (2) knowingly causing physical contact with another person when
done in a rude, insulting or angry manner." K.S.A. 2012 Supp. 21-5413(a). A violation of
K.S.A. 2012 Supp. 21-5413(a) is a person misdemeanor. K.S.A. 2012 Supp. 21-
5413(g)(1).

Here, admittedly, the statutes are not identical. The offenses, however, are clearly
similar in nature and cover similar conduct. In fact, outside of the state-of-mind
requirement in the 2012 version of the statute, the nature and conduct outlawed by the
prior statute and K.S.A. 2012 Supp. 21-5413(a)(2) are identical. Because a showing of
intentional conduct would satisfy an element of a crime requiring that an act be done
knowingly, the prior statute is more narrow than the 2012 statute. For this reason, the
court properly classified Morris' pre-KSGA battery convictions as person misdemeanors.

A similar analysis can be used for Morris' December 1992 assault conviction.
Under K.S.A. 21-3408 (Ensley 1988), an assault is "an intentional threat or attempt to do
bodily harm to another coupled with apparent ability and resulting in immediate
apprehension of bodily harm. No bodily contact is necessary." The Kansas statute in
force in July 2012 when Morris committed the underlying crime at issue here, K.S.A.
2012 Supp. 21-5412, stated in part: "(a) Assault is knowingly placing another person in
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reasonable apprehension of immediate bodily harm." A violation of K.S.A. 2012 Supp.
21-5412(a) is a person misdemeanor. K.S.A. 2012 Supp. 21-5412(e)(1). Again, the nature
and conduct covered under the statutes is similar and the prior statute is narrower than the
later statute, meaning these are comparable statutes.

Because the pre-KSGA battery and assault convictions were properly classified as
person misdemeanors under the Kansas sentencing guidelines, we find the court did not
err in classifying Morris' prior crimes for purposes of calculating his criminal history
score.

Affirmed.