author: Pierron, J.: Bruns, J., dissenting:

text:
    STATE of Kansas, Appellee, v. Jerry L. ST. JOHN, Appellant.
    No. 119,310
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    MEMORANDUM OPINION
   Pierron, J.:

St. John pleaded no contest to two counts of criminal sodomy and one count of aggravated indecent liberties with a child. The district court found he was a persistent sex offender because he had a prior conviction for second-degree rape in Oklahoma. The court sentenced him to 214 months' imprisonment, an enhanced sentence based on his status as a persistent sex offender. St. John appeals, arguing the district court erred (1) in classifying him as a persistent sex offender because Oklahoma second-degree rape is not comparable to any sexually violent crime in Kansas; (2) in classifying his Oklahoma second-degree rape conviction as a person felony because the elements are not identical to, or narrower than, any Kansas crime; (3) by holding it did not have discretion to depart from the persistent sex offender sentencing provision; and (4) in relying on an Oklahoma deferred judgment in determining his criminal history score.

FACTS

In December, 2017, St. John pleaded no contest to two counts of criminal sodomy and one count of aggravated indecent liberties with a child, all severity level 3 person felonies. See K.S.A. 2017 Supp. 21-5504(a)(4) ; K.S.A. 2017 Supp. 21-5506(b)(1). In exchange for his pleas, the State agreed to recommend the sentences run concurrently. St. John would be free to argue for any other legal sentence.

St. John's presentence investigation (PSI) report showed he had a criminal history score of C and showed he had two prior convictions. One was a 2010 conviction for second-degree burglary from Oklahoma. That conviction was classified as a nonperson felony. The other was a 2011 conviction for second-degree rape, also from Oklahoma. That conviction was classified as a person felony. His PSI report also classified him as a persistent sex offender.

St. John moved for a durational departure. At sentencing, the district court found he had a criminal history score of C. After hearing from both parties, the court found it did not have discretion to depart because St. John qualified as a persistent sex offender. The court added it would have departed if it had the discretion to do so. The court then sentenced St. John to a controlling term of 214 months' imprisonment. St. John appeals.

ANALYSIS

K.S.A. 2017 Supp. 21-6804(j)

St. John argues the district court erred in classifying him as a persistent sex offender under K.S.A. 2017 Supp. 21-6804(j). That statute defines a persistent sex offender in part as an offender with a prior conviction for a sexually violent crime in Kansas or a comparable out-of-state felony. K.S.A. 2017 Supp. 21-6804(j)(2)(A)(ii). Relying on the Kansas Supreme Court's decision in State v. Wetrich , 307 Kan. 552, 412 P.3d 984 (2018), St. John argues that a comparable felony under K.S.A. 2017 Supp. 21-6804(j) is one with identical-or-narrower elements to a Kansas sexually violent crime. He contends that some versions of Oklahoma second-degree rape are broader than any sexually violent crime in Kansas, thus his Oklahoma second-degree rape conviction is not a comparable felony and cannot be used to classify him as a persistent sex offender. Because he was incorrectly classified as a persistent sex offender, he argues his sentence is illegal under K.S.A. 2017 Supp. 22-3504(3) because it does not conform to the appropriate statutory provisions.

The State points out that St. John is challenging the legality of his sentence for the first time on appeal. Generally, when a party fails to raise an issue before the district court, it may not raise that issue on appeal. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). The State urges us to apply this rule here. But Kansas appellate courts have repeatedly held that a court may correct a sentence at any time, even when a party raises the issue for the first time on appeal. See, e.g., State v. Dickey , 301 Kan. 1018, Syl. ¶ 1, 350 P.3d 1054 (2015).

To resolve this issue, we must answer two questions: (1) What is a comparable felony under K.S.A. 2017 Supp. 21-6804(j) ; and (2) is an Oklahoma second-degree rape conviction comparable to a Kansas sexually violent crime? To answer these questions, we must interpret the Kansas Sentencing Guidelines Act (KSGA). Statutory interpretation is a question of law subject to unlimited review. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). Likewise, a sentence's legality is a question of law over which we have unlimited review. State v. Lee , 304 Kan. 416, 417, 372 P.3d 415 (2016).

What Is a Comparable Felony Under K.S.A. 2017 Supp. 21-6804(j) ?

K.S.A. 2017 Supp. 21-6804 is part of the revised KSGA and provides the sentencing guidelines grid for nondrug crimes. That grid defines the presumptive sentence for felony convictions based on the crime's severity level and the offender's criminal history score. K.S.A. 2017 Supp. 21-6804(c) and (d). That statute also contains a special sentencing provision for persistent sex offenders and requires district courts to sentence persistent sex offenders to double the maximum presumptive prison term for the offender's crime of conviction. K.S.A. 2017 Supp. 21-6804(j)(1).

A persistent sex offender is a person who:

"(A)(i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717, and amendments thereto; and
"(ii) at the time of the conviction under subsection (j)(2)(A)(i) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717, and amendments thereto, in this state or comparable felony under the laws of another state, the federal government or a foreign government; or
"(B)(i) has been convicted of rape, as defined in K.S.A. 21-3502, prior to its repeal, or K.S.A. 2017 Supp. 21-5503, and amendments thereto; and
"(ii) at the time of the conviction under subsection (j)(2)(B)(i) has at least one conviction for rape in this state or comparable felony under the laws of another state, the federal government or a foreign government." K.S.A. 2017 Supp. 21-6804(j)(2).

So whether an offender qualifies as a persistent sex offender depends on two factors-the offender's current conviction and the offender's criminal history. St. John's current convictions are for criminal sodomy and aggravated indecent liberties with a child. Both crimes are sexually violent crimes under K.S.A. 2017 Supp. 22-3717(d)(5). Because St. John's current convictions are sexually violent crimes, he would have to have at least one prior conviction for a sexually violent crime or a comparable out-of-state felony to qualify as a persistent sex offender. K.S.A. 2017 Supp. 21-6804(j)(2)(A)(ii).

St. John has a prior conviction for second-degree rape from Oklahoma. Oklahoma classifies second-degree rape as a felony. Okla. Stat. Ann. Tit. 21, § 1116. But whether this conviction qualifies him as a persistent sex offender depends on the requirement for comparability under K.S.A. 2017 Supp. 21-6804(j)(2)(A)(ii).

The court in State v. Riolo , 50 Kan. App. 2d 351, 330 P.3d 1120 (2014), addressed this issue. Riolo challenged his classification as a persistent sex offender based on a prior Colorado conviction for sexual assault on a child. He argued that differences between the elements of sexual assault on a child in Colorado and indecent liberties with a child in Kansas meant his Colorado conviction was not comparable to any Kansas offense. The Riolo court rejected his argument, holding that under the persistent sex offender sentencing provision, the elements of the comparable Kansas offense need not be identical to the out-of-state crime as long as the statutes were similar in nature and in the conduct they prohibited. 50 Kan. App. 2d at 356-57.

In reaching this conclusion, the Riolo court relied on previous caselaw interpreting the meaning of "comparable" in K.S.A. 21-4711(e) (later recodified as K.S.A. 21-6811 [e] ). 50 Kan. App. 2d at 353 (citing State v. Barajas , 43 Kan. App. 2d 639, 643, 230 P.3d 784 [2010] ). That statute requires an offender's prior out-of-state convictions to be classified as either a person or nonperson crime for calculating the offender's criminal history score. In determining whether an out-of-state conviction is a person or nonperson crime, "comparable offenses under the Kansas criminal code in effect on the date of the current crime of conviction shall be referred to." K.S.A. 2017 Supp. 21-6811(e)(3). When Riolo was decided, Kansas caselaw held that under subsection (e), "[a] comparable offense need not contain elements identical to those of the out-of-state crime ... but must be similar in nature and cover a similar type of criminal conduct. [Citation omitted.]" Barajas , 43 Kan. App. 2d at 643 ; see also State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 (2003), overruled on other grounds by State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015) (holding "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical").

But since Riolo , the Kansas Supreme Court has re-examined the statutory requirement for comparability under K.S.A. 2017 Supp. 21-6811(e)(3). In Wetrich , the defendant challenged the classification of his prior Missouri burglary conviction as a person felony for purposes of calculating his criminal history score. The Wetrich court declined to resolve this issue on constitutional grounds and relied instead on statutory interpretation. The court first sought to determine the plain language of K.S.A. 2017 Supp. 21-6811(e)(3). But after looking at both dictionary and thesaurus definitions of comparable, the court determined that the plain language was unclear. 307 Kan. at 559-60.

Because the statute's language was unclear, the Wetrich court turned to legislative history. The court recognized that the KSGA represented a significant change in sentencing laws. The Kansas Legislature had several stated principles behind this change, including: "Sanctions should be uniform and not related to socioeconomic factors, race, or geographic location." 307 Kan. at 560. In line with this principle, the court determined:

"For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." 307 Kan. at 562.

The State argues that Riolo is the controlling case on the meaning of comparable in K.S.A. 2017 Supp. 21-6811(e). But Riolo based its decision on prior caselaw interpreting the meaning of comparable in K.S.A. 2017 Supp. 21-6811(e). The Kansas Supreme Court has since re-examined the meaning of comparable in K.S.A. 2017 Supp. 21-6811(e). It follows then that the meaning of comparable in K.S.A. 2017 Supp. 21-6804(j) should follow suit.

The State argues that Wetrich does not apply here for several more reasons: it was wrongly decided because the commonly understood meaning of comparable is "similar" and not "identical"; it interpreted a different statute; and K.S.A. 21-4704(j) (now K.S.A. 2017 Supp. 21-6804 [j] ) is a special sentencing provision first passed in 1996, three years after the Kansas Legislature enacted the KSGA. See L. 1996, ch. 258, § 10.

The State's arguments are not persuasive given the controlling caselaw. We are duty bound to follow Wetrich absent some indication our Supreme Court is departing from its previous position. State v. Meyer , 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). No such indication exists here. While Wetrich interpreted a different statute, both statutes are part of the KSGA, and courts must construe statutes in pari materia and bring the provisions into a workable harmony. State v. Keel , 302 Kan. 560, Syl. ¶ 7, 357 P.3d 251 (2015). Finally, while K.S.A. 21-4704(j) was enacted in 1996, there is no reason to think the Kansas Legislature abandoned the principles behind the KSGA in those three years.

The State also argues that Wetrich does not apply because of a 2017 amendment to K.S.A. 2017 Supp. 22-3504(3) that states: "A sentence is not an 'illegal sentence' because of a change in the law that occurs after the sentence is pronounced." The State says Wetrich was a change in the law after St. John's sentencing, so the new identical or narrower rule does not apply to his sentence. The State is correct that Wetrich is a change in law. See State v. Weber , 309 Kan. ----, 442 P.3d 1044, 1049 (2019).

Even so, St. John still receives any benefit of that change. As St. John points out, this is his direct appeal, not a motion to correct an illegal sentence. In State v. Murdock , 309 Kan. 585, 591, 439 P.3d 307 (2019), the Kansas Supreme Court held that "a party may seek and obtain the benefit of a change in the law during the pendency of a direct appeal, but a party moving to correct an illegal sentence is stuck with the law in effect at the time the sentence was pronounced." See L. 2019, ch. 59, § 15 (" 'Change in the law' means a statutory change or an opinion by an appellate court of the state of Kansas, unless the opinion is issued while the sentence is pending an appeal from the judgment of conviction.")

Adopting the rationale of Wetrich , we find that for an out-of-state felony to be comparable to a sexually violent crime in Kansas under K.S.A. 21-6804(j), the elements of the out-of-state crime must be identical to, or narrower than, the Kansas crime.

Is Oklahoma Second-Degree Rape Comparable to Any Sexually Violent Crime in Kansas?

Having determined the statutory requirement of comparability under K.S.A. 2017 Supp. 21-6804(j), we must next determine if an Oklahoma second-degree rape conviction is comparable to a Kansas sexually violent crime as defined in K.S.A. 2017 Supp. 22-3717(d)(5).

In Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the United States Supreme Court held: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. In Descamps v. United States , 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), the Court set out an analysis for determining whether a prior conviction could be used to enhance a sentence without violating Apprendi . If the prior conviction was for violating a statute with a single set of elements, a sentencing court may look only at the statutory definition of a defendant's prior conviction and not the facts underlying the conviction. Descamps , 570 U.S. at 261. This is known as the categorical approach. But if the prior conviction was for violating a statute that "sets out one or more elements of the offense in the alternative," a sentencing court may consult a limited class of documents to determine which alternative elements formed the basis of the defendant's prior conviction. 570 U.S. at 257, 261-62. This is known as the modified categorical approach. The Kansas Supreme Court adopted the Descamps analysis in State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015).

Later, in Wetrich , the Kansas Supreme Court adopted the identical-or-narrower rule for determining how convictions are to be scored as either person or nonperson crimes in Kansas. Both parties appear to believe Wetrich eliminated the analysis set out in Descamps and adopted in Dickey . Because Wetrich involved a statute with a single set of elements, it is not clear how Wetrich 's identical or narrower rule should apply to a statute with alternative elements. But either way the outcome is the same: Oklahoma second-degree rape covers a broader range of conduct than any sexually violent crime in Kansas. Because the alternative ways a defendant can commit Oklahoma second-degree rape are likely means and not elements, the statutes are indivisible. As a result, Oklahoma second-degree rape is not a comparable out-of-state felony under K.S.A. 2017 Supp. 21-6804(j).

Oklahoma Second-Degree Rape

St. John argues that the elements of Oklahoma second-degree rape are broader than any sexually violent crime in Kansas. At the time of St. John's prior conviction, three statutes defined the crime of rape in Oklahoma. Okla. Stat. tit. 21, § 1111 (2011), generally defined the elements of rape:

"A. Rape is an act of sexual intercourse involving vaginal or anal penetration accomplished with a male or female who is not the spouse of the perpetrator and who may be of the same or the opposite sex as the perpetrator under any of the following circumstances:
"1. Where the victim is under sixteen (16) years of age;
"2. Where the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;
"3. Where force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person;
"4. Where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit;
"5. Where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;
"6. Where the victim submits to sexual intercourse under the belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief. In all cases of collusion between the accused and the spouse to accomplish such act, both the spouse and the accused, upon conviction, shall be deemed guilty of rape;
"7. Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or
"8. Where the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system.
"B. Rape is an act of sexual intercourse accomplished with a male or female who is the spouse of the perpetrator if force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person."

Oklahoma does not define sexual intercourse by statute. But the Oklahoma Uniform Jury Instructions provide: "Sexual intercourse is the actual penetration of the vagina/anus by the penis." OUJI-CR 4-122 (2018); see also Miller v. State , 82 P.2d 317, 322 (Okla. Crim. App. 1938) (holding sexual intercourse requires "proof to some degree of entrance of the male organ, that is, it must be shown that the private parts of the male entered at least to some extent those of the female").

Okla. Stat. tit. 21, § 1111.1 (2011), defined the elements of rape by instrumentation:

"Rape by instrumentation is an act within or without the bonds of matrimony in which any inanimate object or any part of the human body, not amounting to sexual intercourse is used in the carnal knowledge of another person without his or her consent and penetration of the anus or vagina occurs to that person. Provided, further, that at least one of the circumstances specified in Section 1111 of this title has been met; further, where the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in conduct prohibited by this section of law with a person who is eighteen (18) years of age or older and is an employee of the same school system, or where the victim is under the legal custody or supervision of a state or federal agency, county, municipal or a political subdivision and engages in conduct prohibited by this section of law with a federal, state, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim, consent shall not be an element of the crime."

Okla. Stat. tit. 21, § 1114 (2011), differentiated first and second-degree rape:

"A. Rape in the first degree shall include:
"1. rape committed by a person over eighteen (18) years of age upon a person under fourteen (14) years of age; or
"2. rape committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or
"3. rape accomplished where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit; or
"4. rape accomplished where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;
"5. rape accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the person committing the crime; or
"6. rape by instrumentation resulting in bodily harm is rape by instrumentation in the first degree regardless of the age of the person committing the crime; or
"7. rape by instrumentation committed upon a person under fourteen (14) years of age.
"B. In all other cases, rape or rape by instrumentation is rape in the second degree."

Looking at these statutes, Oklahoma law has defined at least 12 ways to commit second-degree rape:

1. Penile penetration of the anus or vagina of a victim who is not the offender's spouse when the victim is under 16 years old.
2. Penile penetration of the anus or vagina of a victim who is not the offender's spouse when "the victim submits to sexual intercourse under the belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief."
3. Penile penetration of the anus or vagina of a victim who is not the offender's spouse when "the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim, or the subcontractor or employee of a subcontractor of the contractor of the state or federal government, a county, a municipality or a political subdivision that exercises authority over the victim."
4. Penile penetration of the anus or vagina of a victim who is not the offender's spouse when "the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in sexual intercourse with a person who is eighteen (18) years of age or older and is an employee of the same school system."
5. Nonconsensual penetration of the anus or vagina by any non-penile object when the victim is sixteen (16) years of age.
6. Nonconsensual penetration of the anus or vagina by any non-penile object when the victim is incapable through mental illness or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.
7. Nonconsensual penetration of the anus or vagina by any non-penile object when force or violence is used or threatened, accompanied by apparent power of execution to the victim or to another person.
8. Nonconsensual penetration of the anus or vagina by any non-penile object when the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit.
9. Nonconsensual penetration of the anus or vagina by any non-penile object when the victim is at the time unconscious of the nature of the act and this fact is known to the accused.
10. Nonconsensual penetration of the anus or vagina by any non-penile object when the victim submits to sexual intercourse under the belief that the person committing the act is a spouse, and this belief is induced by artifice, pretense, or concealment practiced by the accused or by the accused in collusion with the spouse with intent to induce that belief. In all cases of collusion between the accused and the spouse to accomplish such act, both the spouse and the accused, upon conviction, shall be deemed guilty of rape.
11. Penetration of the anus or vagina by any non-penile object, regardless of consent, the victim is at least sixteen (16) years of age and is less than twenty (20) years of age and is a student, or under the legal custody or supervision of any public or private elementary or secondary school, junior high or high school, or public vocational school, and engages in conduct prohibited by this section of law with a person who is eighteen (18) years of age or older and is an employee of the same school system.
12. Penetration of the anus or vagina by any non-penile object, regardless of consent, the victim is under the legal custody or supervision of a state or federal agency, county, municipal or a political subdivision and engages in conduct prohibited by this section of law with a federal, state, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim.

Kansas Sexually Violent Crimes

St. John committed his current offense in July 2017. At the time, K.S.A. 2017 Supp. 22-3717(d)(5), identified following crimes as sexually violent crimes:

1. Rape under K.S.A. 2017 Supp. 21-5503 ;
2. Indecent liberties with a child and aggravated indecent liberties with a child under K.S.A. 2017 Supp. 21-5506(a) and (b) ;
3. Criminal sodomy and aggravated criminal sodomy under K.S.A. 2017 Supp. 21-5504(a)(3), (a)(4), and (b) ;
4. Indecent solicitation of a child and aggravated indecent solicitation of a child under K.S.A. 2017 Supp. 21-5508(a) and (b) ;
5. Sexual exploitation of a child under K.S.A. 2017 Supp. 21-5510 ;
6. Aggravated sexual battery under K.S.A. 2017 Supp. 21-5505(b) ;
7. Aggravated incest under K.S.A. 2017 Supp. 21-5604(b) ;
8. Aggravated human trafficking under K.S.A. 2017 Supp. 21-5426(b), if committed in whole or in part for the sexual gratification of the defendant or another;
9. Internet trading in child pornography or aggravated internet trading in child pornography under K.S.A. 2017 Supp. 21-5514(a) and (b) ; and
10. Commercial sexual exploitation of child under K.S.A. 2017 Supp. 21-6422.
11. Attempt, conspiracy, or criminal solicitation defined in K.S.A. 2017 Supp. 21-5301, 21-5302, or 21-5303, of a sexually violent crime defined above.

Comparability Without Using Descamps/Dickey Analysis

If we determine the Descamps /Dickey analysis no longer applies after Wetrich , then the district court erred in finding St. John was a persistent sex offender because Oklahoma second-degree rape covers a broader range of conduct than the sexually violent crimes listed in K.S.A. 2017 Supp. 22-3717(d)(5). For example, Oklahoma second-degree rape would include sexual intercourse between an employee of a school system who is 18 years old or older and a student of that same school system who is between 16 and 20 years old. But the closest Kansas crime covering this conduct would be unlawful sexual relations under K.S.A. 2017 Supp. 21-5512(a)(9), which is not a sexually violent crime. In addition, at least one way of committing Oklahoma second-degree rape does not appear to be a crime in Kansas at all-when the victim submits to sexual intercourse under the fraudulently induced belief that the person committing the act is a spouse. Because the elements of Oklahoma second-degree rape are not identical to, or narrower than, any sexually violent crime in Kansas, it is not a comparable felony under K.S.A. 2017 Supp. 21-6804(j).

Comparability Using Descamps/Dickey Analysis

If we decide the Descamps /Dickey analysis still applies, then we follow a different path to the same destination. In Mathis v. United States , 579 U.S. ----, 136 S. Ct. 2243, 2249, 195 L. Ed. 2d 604 (2016), the United States Supreme Court clarified that the modified categorical approach applies only to statutes that list "multiple elements disjunctively" and thus "define multiple crimes." It does not apply to statutes that list "various factual means of committing a single element." 136 S. Ct. at 2249. For example, if "a statute requires the use of a 'deadly weapon' as an element of a crime and further provides that the use of a 'knife, gun, bat, or similar weapon' would all qualify," use of the modified categorical approach would be inappropriate because that statute "merely specifies diverse means of satisfying a single element of a single crime." 136 S. Ct. at 2249. So "[t]he first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means." 136 S. Ct. at 2256.

The Mathis Court proposed several ways a sentencing court could determine whether a statute lists alternative means or alternative elements. First, a sentencing court may look to a state court decision that holds that a set of statutory alternatives are means or elements. Next, a court may look to see if statutory alternatives carry different punishments. If so, they are elements and not means. Third, a court may determine if a statute lists "illustrative examples," in which case the alternatives are means. Finally, the statute may state which things the State must charge, making them elements, and which things the State need not charge, making them means. 136 S. Ct. at 2256.

In Mathis , the Court determined that Iowa's burglary law listed alternative means, instead of elements, based on state caselaw. The Iowa Supreme Court had held that the listed premises in the state's burglary law were " 'alternative method[s]' of committing one offense, so that a jury need not agree" on the burgled location. 136 S. Ct. at 2256 (quoting State v. Duncan , 312 N.W.2d 519, 523 [Iowa 1981] ). According to Mathis , "when a [state court] ruling of that kind exists," it "definitively" establishes that the statutory alternatives are means instead of elements. 136 S. Ct. at 2256.

Oklahoma appears to have just that kind of ruling. In Bruner v. State , 612 P.2d 1375 (Okla. Crim. App. 1980), the defendant was charged with first degree rape under several theories including: (1) the victim was under the age of sixteen; (2) that the defendant used force to overcome the victim's resistance; and (3) that the defendant used threats of immediate injury or great bodily harm, along with the apparent ability to carry out those threats. The jury instructions in his case also set out the theories of guilt disjunctively. On appeal, the defendant challenged his conviction, arguing that "he was denied due process of law and may have been convicted under a nonunanimous verdict." 612 P.2d at 1380. He asserted "[i]t was conceivable ... that the jury could have found him guilty without unanimously finding him guilty of each and every element necessary to the crime beyond a reasonable doubt" because of the way the jury instructions were drafted. 612 P.2d at 1380.

The Bruner court rejected both the defendant's due process and jury-unanimity arguments. The court held that first degree rape was "only a single crime ... which could be accomplished in different ways." 612 P.2d at 1380. When the State charges a defendant with first degree rape under several theories of guilt, proof of either or all the theories would support a conviction. 612 P.2d at 1380.

Like the Iowa state court decision discussed in Mathis , the Oklahoma Court of Criminal Appeals has held that the statutory alternatives for first degree rape are different ways of committing one crime, and a jury need not unanimously agree on any one of these alternatives to convict. While Bruner addressed first-degree rape, there is no reason to believe Oklahoma courts would treat second-degree rape any differently, as both crimes are defined in the same statutes. Thus, the many ways to commit second-degree rape in Oklahoma are means and not elements. See also, United States v. Degeare , 884 F.3d 1241, 1258 (10th Cir. 2018) (finding Oklahoma's forcible-sodomy statute was not necessarily divisible based in part on Bruner ).

On the other hand, Oklahoma jury instructions refer to the alternative ways of committing rape as elements, not means. For example, the current jury instruction for second-degree rape not by instrumentation states:

"No person may be convicted of rape in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
"First, sexual intercourse;
"Second, with a person who is not the spouse of the defendant [and who may be of the same sex as the defendant];
"[Third, where the victim was under the age of sixteen].
"OR
"[Third, where the victim was under the belief induced by the defendant that the victim was having intercourse with his/her spouse].
"OR
"[Third, where the victim was under the legal custody/supervision;
"Fourth, of a (state/federal agency)/county/municipality/(political subdivision); and
"Fifth, the defendant was an employee/(employee of a contractor of)/the (state/federal agency)/county/municipality/(political subdivision) that exercised authority over the victim;].
"OR
"[Third, where the victim was between sixteen and twenty years of age;
"Fourth, the victim was a student/(under the legal custody/supervision) of a/an (elementary/secondary school)/(junior high)/high/(public vocational) school;
"Fifth, the defendant was eighteen years of age or older; and
"Sixth, the defendant was an employee of the victim's school system]". OUJI CR 4-124 (2018).

The Notes on Use for this instruction also provide, "The trial court should read the bracketed language in the second element only if the defendant was of the same sex as the victim. In the third element the trial court should read only the alternative (or alternatives) that is (or are) supported by the evidence." OUJI CR 4-124, notes on use.

The Tenth Circuit rejected a similar argument in Degeare . There, the defendant argued that the various ways of committing forcible sodomy in Oklahoma were elements and not means. In support of this argument, he highlighted Oklahoma's use of the word "elements" in the jury instruction on forcible oral sodomy. But the Tenth Circuit rejected his argument, concluding "simply calling a statutory alternative an element doesn't make it so. ... This much is clear from the fact that the 'Notes on Use' following Oklahoma's first-degree-rape instruction likewise refer to § 1111's alternatives-alternatives that Bruner establishes are actually means, 612 P.2d at 1380 -as 'element[s].' [Citation omiited.]" Degeare , 884 F.3d at 1255.

Because the above listed ways of committing second-degree rape in Oklahoma are means, instead of elements, the use of the modified categorical approach would be inappropriate here. Because Oklahoma's second-degree rape covers a broader range of conduct than the sexually violent crimes listed in K.S.A. 2017 Supp. 22-3717(d)(5), it is not a comparable out-of-state felony under the persistent sex offender sentencing provision. Thus, the district court erred in classifying St. John as a persistent sex offender.

Did the District Court Err in Classifying St. John's Prior Oklahoma Rape Conviction as a Person Felony?

St. John argues the district court erred in classifying his Oklahoma second-degree rape conviction as a person felony. As with the previous issue, this issue involves a question of law subject to unlimited review. Lee , 304 Kan. at 417 ; Collins , 303 Kan. at 473-74.

The Kansas sentencing statute requires an offender's prior out-of-state convictions to be classified as either a misdemeanor or felony for calculating the offender's criminal history score. K.S.A. 2017 Supp. 21-6811(e)(2). That statute also requires an offender's out-of-state conviction to be classified as a person or nonperson crime. K.S.A. 2017 Supp. 21-6811(e)(3). In determining whether an out-of-state conviction is a person or nonperson crime, "comparable offenses under the Kansas criminal code in effect on the date of the current crime of conviction shall be referred to." K.S.A. 2017 Supp. 21-6811(e)(3). For an out-of-state conviction to be comparable to a Kansas crime, "the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." Wetrich , 307 Kan. at 562.

We acknowledge the Kansas Legislature recently amended K.S.A. 21-6811, effective May 23, 2019. L. 2019, ch. 59, § 13. These amendments change the way of classifying an offender's prior felony conviction as a person crime and eliminate the need to determine if an out-of-state felony is comparable to a Kansas felony. That said, the sentencing provisions in effect at the time a crime is committed are controlling. State v. McLinn , 307 Kan. 307, 337, 409 P.3d 1 (2018). Additionally, the Kansas Legislature did not make the 2019 amendments retroactive. Because St. John committed his current crime of conviction in 2017, the version of K.S.A. 21-6811 in effect at that time controls his sentencing.

Oklahoma classifies second-degree rape as a felony. Okla. Stat. Ann. Tit. 21 § 1116. So St. John's conviction is also classified as a felony for purposes of calculating his criminal history score. K.S.A. 2017 Supp. 21-6811(e)(2)(A) ("If a crime is a felony in the convicting jurisdiction, it will be counted as a felony in Kansas.")

But as far as whether Oklahoma second-degree rape classifies as a person felony, the analysis here is much like the last issue. Oklahoma's second-degree rape statute covers a broader range of conduct than any Kansas person felony. The various ways of committing second-degree rape are means and not elements, thus use of the modified categorical approach would be inappropriate. See Wetrich , 307 Kan. at 564 ; Bruner , 612 P.2d at 1380. As a result, the district court erred in classifying St. John's Oklahoma second-degree rape conviction as a person felony for calculating his criminal history score.

We admit that classifying rape as a nonperson felony appears to be very odd. However, we must apply the analysis noted above which compels that finding.

Because the district court erred by classifying St. John as a persistent sex offender and by classifying his Oklahoma second-degree rape conviction as a person felony, we must vacate St. John's sentence and remand for resentencing.

Did the District Court Err in Holding It Did Not Have Discretion to Depart Because St. John Was a Persistent Sex Offender?

St. John argues the district court erred by holding it did not have discretion to grant a departure because St. John was a persistent sex offender. This issue involves statutory interpretation, which is a question of law subject to unlimited review. Collins , 303 Kan. at 473-74.

The sentencing grid set out in K.S.A. 2017 Supp. 21-6804(a) defines presumptive sentences. But under K.S.A. 2017 Supp. 21-6804(d), presumptive sentences are subject to the court's discretion to enter a departure sentence. That statute states:

"The sentencing guidelines grid for nondrug crimes as provided in this section defines presumptive punishments for felony convictions, subject to the sentencing court's discretion to enter a departure sentence. The appropriate punishment for a felony conviction should depend on the severity of the crime of conviction when compared to all other crimes and the offender's criminal history."

St. John points out the court in State v. Chesbro , 35 Kan. App. 2d 662, 681, 134 P.3d 1 (2006), has already held that district courts have the discretion to depart when the defendant qualifies as a persistent sex offender. Interpreting K.S.A. 2005 Supp. 21-4704 (later recodified as K.S.A. 2017 Supp. 21-6804 ), the Chesbro court found the persistent sex offender provision simply establishes the presumptive sentence for offenses committed by persons classified as persistent sex offenders. As a result, district courts have the statutory authority to depart from that presumptive sentence. 35 Kan. App. 2d at 680-81.

St. John acknowledges that Chesbro interpreted an earlier version of K.S.A. 2017 Supp. 21-6804(d). But as he argues, the recodified version is substantially the same. Compare K.S.A. 2005 Supp. 21-4704(d) ("The sentencing guidelines grid for non-drug crimes as provided in this section defines presumptive punishments for felony convictions, subject to judicial discretion to deviate for substantial and compelling reasons and impose a different sentence in recognition of aggravating and mitigating factors as provided in this act.") with K.S.A. 2017 Supp. 21-6804(d) ("The sentencing guidelines grid for non-drug crimes as provided in this section defines presumptive punishments for felony convictions, subject to the sentencing courts' discretion to enter a departure sentence."). While the Kansas Legislature made some changes to the language in subsection (d), it did not adopt language abrogating Chesbro . See In re Adoption of G.L.V. , 286 Kan. 1034, 1052, 190 P.3d 245 (2008) (" 'When the legislature fails to modify a statute to avoid a standing judicial construction of that statute, the legislature is presumed to agree with the court's interpretation.' [Citations omitted.]").

Here, the district court found it did not have discretion to depart. This was error. The court also held it would have granted the departure if it had the discretion. Thus, St. John's sentence is vacated and remanded for resentencing.

Did the District Court Err in Including an Oklahoma Deferred Judgment in St. John's Criminal History?

Finally, St. John argues that the district court erred in relying on an Oklahoma deferred judgment in determining his criminal history score. He points out his PSI showed he had a criminal history score of C based on two prior Oklahoma convictions: second-degree rape, classified as a person felony, and second-degree burglary, classified as a nonperson felony. At sentencing, the court found he had a criminal history score of C and used that score to determine his sentence. But St. John claims his Oklahoma burglary conviction was a deferred judgment and should not have been included in the calculation of his criminal history score. Without the burglary conviction, his criminal history score would have been D instead of C. See K.S.A. 2017 Supp. 21-6804.

In State v. Hankins , 304 Kan. 226, 238-39, 372 P.3d 1124 (2016), our Supreme Court held that an Oklahoma deferred judgment is not a prior conviction under the KSGA and cannot be used to calculate a defendant's criminal history score. The Hankins court noted that under Kansas law, a conviction requires a judgment of guilt. But Oklahoma's deferred judgment allows courts to impose conditions without entering a judgment of guilt. If the offender completes the deferred judgment, he or she is discharged without a judgment of guilt.

The State makes no argument on whether St. John's sentence is legal or illegal. Instead, it argues that St. John has failed to provide a record establishing error. Generally, the party claiming an error occurred has the burden of designating a record showing prejudicial error. State v. Sisson , 302 Kan. 123, 128, 351 P.3d 1235 (2015). St. John did attach purported proof of his Oklahoma deferred judgment to his brief. But while an appellant's brief may contain an appendix with limited extracts from the record for the court's convenience, an appendix may not substitute for the record itself. Kansas Supreme Court Rule 6.02(b) (2019 Kan. S. Ct. R. 35).

Because the record does not show that St. John's Oklahoma burglary conviction was a deferred judgment, the State's argument has some merit. But St. John's sentence is vacated and remanded for resentencing for other reasons. Although an issue not raised below is precluded on appeal, the issue may be raised on remand. State v. Greever , 286 Kan. 124, 132, 183 P.3d 788 (2008). Thus, we decline to reach the merits of whether St. John's sentence is illegal on this point and allow him to raise the issue before the district court on remand.

The sentence is vacated and the matter is remanded to the district court for resentencing consistent with opinion.

Vacated and remanded.

* * *

Bruns, J., dissenting:

I respectfully dissent. Although I agree with my colleagues that we are duty bound to follow the holding in State v. Wetrich , 307 Kan. 552, 412 P.3d 984 (2018), I do not believe that the holding in Wetrich should be extended to cases involving inherently person crimes such as rape and homicide. It is only in a world of legal fiction that a rape could possibly be deemed anything but a person crime.

It is important to note that Wetrich involved a comparison between the Kansas burglary statute, K.S.A. 21-3715, and the Missouri second-degree burglary statute, Mo. Rev. Stat. 569.170 (1986). In that context, the "identical or narrower" analysis made sense because crimes such as burglary can be either person or nonperson crimes depending on how they are committed. On the other hand, a rape-the penetration of another human being without consent-is by definition a person crime regardless of how or where it is committed. Thus, I would affirm.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Chase L. COBLE, Appellant.
    No. 118,382
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Korey A. Kaul, of the Kansas Appellate Defender Office, for appellant.
    Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Arnold-Burger, C.J., Hill and Gardner, JJ.
    MEMORANDUM OPINION
   Per Curiam:

This is an appeal by Chase Coble of his conviction for one count of aggravated arson. We reject his claim of a charging error and find there is sufficient evidence to support his conviction. We affirm.

Weird science makes weird facts.

When Hutchinson firefighters arrived at the Plaza Towers apartment building in response to a fire alarm on the twelfth floor, they forced open the door to apartment 12-E and discovered fire and smoke inside. The sprinkler system was shut off. They discovered soot and charring in three areas: the living room; a closet; and the kitchen. About two inches of water covered the floor of the apartment which eventually drained to the apartment directly below. The firefighters found chemicals, beakers, test tubes, and other laboratory equipment.

The fire alarm sounded on June 21, 2016, around 6:50 a.m. Two Hutchinson Fire Department fire engines were dispatched. About 75 people lived in the building at the time. Some residents were evacuated because of the alarm.

Hutchinson police officers arrived to assist, and they found Coble, who lived in apartment 12-E, sitting on a chair outside the apartment. He was not wearing a shirt and had burns extending from the middle of his chest to his stomach. Coble declined medical attention. He said he was a "chemistry major" and received the chemical burns about a week earlier when an experiment mixing muriatic acid and another material "flash[ed] over." He had taken four chemistry classes in college, but he was essentially self-taught.

This fire started on top of a deep freeze in the living room, which set off the sprinkler system. Coble explained that the fire was caused by an experiment he was working on. The experiment flare-up occurred in a bowl he had placed in the center of some kitty litter "in case something happened." The heat from the flare-up triggered the apartment's sprinkler system, and when the water entered the solvent, it caused a negative reaction. The fire then got "out of hand."

The Sedgwick County Sheriff's Department's Regional Hazmat Response team came in to help identify the various chemicals in Coble's apartment. The State Fire Marshal's Office, the Federal Bureau of Investigation, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives were also called to assist with the investigation.

A search of the apartment found glass fragments in the kitty litter on top of the deep freeze. Coble used the deep freeze as a work bench. The deep freeze and the carpet below it had visible charring and kitty litter scattered about. A V-shaped burn pattern ran up the wall from the top of the freezer on the ceiling.

Coble had several chemistry textbooks. Chemistry supplies such as beakers, test tubes, a hose, and digital scales were located throughout the apartment. Containers of chemicals were also found. They found sulphur, stump remover, toluene, camping fuel, bags of dry ammonia, hydrochloric acid, phosphorus pentabromide, and sulfuric acid.

A large window from the living room had been removed and was in the bedroom closet. The building owner stated the windows in Coble's apartment were fixed and could not be opened. Coble admitted that he removed several screws and took out the window because he did not want to go down twelve flights of stairs to smoke. On a rooftop nine or ten stories below the open window, officers observed a three-neck beaker, pieces of PVC pipe, and a large knife.

ATF and FBI agents interviewed Coble. He admitted he performed chemical experiments in his apartment. Coble was knowledgeable in the area of chemistry and explosives. He explained that the chemical burns on his torso were caused when he was trying to create a potentially fatal chlorine gas. He acknowledged that the gas also caused him to have respiratory issues and he did not perform that experiment again. Coble knew what "personal protection equipment" was and said he was deficient in his "PPE."

Coble admitted causing chemical exothermic reactions that generated heat in his apartment on at least 50 occasions in the year before the June 21 fire. Ten to 20 had occurred in the previous seven months. He admitted that at least three of those caused damage in his apartment. Coble admitted his experiment on June 21 got out of control and set off the sprinkler system. He claimed that the other two flare-ups did not cause any damage, but just created a lot of smoke. He said the soot from those flare-ups could be easily wiped off.

The State Fire Marshal's Office contends that there were three intentionally set incendiary fires in Coble's apartment. One was on top of the freezer in the living room, one was in a closet, and one was in the kitchen.

The State charged Coble with three counts of aggravated arson and two counts of criminal use of explosives. For some reason that is unclear in the record, the three aggravated arson counts used identical language. The two criminal use of explosives charges were later dismissed. The jury found Coble guilty of one count of aggravated arson and not guilty on the two remaining counts. The court sentenced Coble to 66 months in prison and ordered him to pay over $7,800 for restitution.

Coble raises an argument not made in district court.

For the first time on appeal, Coble claims his due process rights were violated. In his view, the verdict is ambiguous because all three of the aggravated arson charges were identical. This means that we cannot review the evidence because it is impossible to determine for which of the three counts of aggravated arson he was found guilty. To preserve Coble's fundamental right that his conviction can be sustained only upon evidence proving each element of this crime beyond a reasonable doubt, we will consider the issue. See State v. Barker , 18 Kan. App. 2d 292, 295, 851 P.2d 394 (1993).

Without a satisfactory explanation why, the State admits that the counts of aggravated arson did not differentiate the three charges by specifying the three locations of the fires. That is, one fire in the living room, one fire in the closet, and one fire in the kitchen. The State further acknowledges that it, at first, did not propose a multiple acts instruction for aggravated arson, but argues that the district court's failure to give a unanimity instruction was not clearly erroneous.

Coble argues that the jury verdict was ambiguous because it did not specify which incendiary event was alleged in count one-the count where he was found guilty. The State argues that the invited error doctrine should prevent appellate review of this issue. The State's argument is persuasive.

A litigant may not invite error and then complain of the error on appeal. State v. Verser , 299 Kan. 776, 784, 326 P.3d 1046 (2014). The invited error doctrine applies only when a party both fails to object and invites the error by other actions; an invited error will be reviewed only if it is structural error. State v. Logsdon , 304 Kan. 3, 31, 371 P.3d 836 (2016).

For example, under the invited error doctrine, a defendant cannot challenge an instruction on appeal, even as clearly erroneous under K.S.A. 2018 Supp. 22-3414(3), when there has been an on-the-record agreement to the wording of the instruction at trial. State v. Peppers , 294 Kan. 377, 393, 276 P.3d 148 (2012).

More facts are important here. One of the jury's questions to the judge read: "Do the 3 counts apply to specific locations or events & if they do which ones belong to which counts." The judge proposed to counsel that he respond by telling the jury to refer to the instructions already given. Defense counsel agreed, stating, "That's, that's my opinion." The State, however, suggested that the court supplement its answer by giving the jury the multiple acts instruction from PIK Crim. 68.100 (2016 Supp.), which advises the jurors that they have to unanimously agree upon the act in each count. Defense counsel disagreed and argued, "I don't think it's appropriate to add an instruction at this point." The district court told the jury to refer to the instructions already given.

So we can see the jury specifically asked for clarification on whether the three counts of aggravated arson accompanied the three specified locations, and, if so, which of the three locations went with each count. Coble did not merely fail to object or merely acquiesce to the district court's suggested response to refer to the instructions already given. Coble stated that he agreed with the district court's suggestion. Coble then argued against the State's request to supplement the court's answer with an instruction advising the jury to unanimously agree upon the act in each count of aggravated arson. Coble claimed it was inappropriate to provide the instruction. After the district court had earlier refused the State's suggestion to augment its answer to the jury's first question, Coble would have understood-when he argued against the clarifying instruction-that the district court would not supplement its responses without Coble's agreement.

Knowing that the district court would not give an instruction he did not agree to, Coble did not object to the district court's proposed answer, agreed with it, and argued against the State's clarifying instruction. Coble also agreed to the wording of the district court's response on the record. He failed to object and invited the ambiguity by other actions. The invited error doctrine applies.

Even so, we find this entire argument unpersuasive because two of the aggravated arson charges ended in acquittal. The record shows that after the State rested its case, Coble moved for a judgment of acquittal on Counts 2 and 3 of aggravated arson because the evidence did not establish that they occurred on June 21, 2016, "[t]here has been really no evidence to substantiate II and III. The date is the 21st of June 2016, on both of those. I didn't hear any testimony that there were three such events on that day." The State argued the approximate dates in Counts 2 and 3 were sufficient because they were within the statute of limitations. The district court denied the motion and found that the State met its burden on counts two and three.

Even more significant, the record shows that both parties' closing arguments to the jurors informed them that the event on June 21, 2016, was reflected in Count 1. The State argued there were three events: one was in a closet; one was in the kitchen; and "one near the entryway that caused the smoke alarms to go off and sprinkler systems and that's what caused us all to be here today. We know the last one occurred on June the 21st of 2016. The others occurred sometime before ...."

Coble's attorney argued at length to the jury about the elements of aggravated arson and whether the State met its burden to prove those elements for the event on June 21, 2016. She then separated her argument from the events of June 21, 2016, and succinctly argued, "Counts Two and Three were never specified nor were they proven by the state. There was vague mention of other minor damage in the apartment, but never addressed with any specificity. Therefore you must return a verdict of not guilty on those two counts." The jury did so.

Given this record we see no ambiguity in the jury's verdict. The arguments of both parties steered the jury into considering Count 1 applied to the fire of June 21. That means the real question remains. Did the State prove Coble guilty beyond a reasonable doubt on Count 1? We will proceed to the sufficiency of the evidence.

Viewed in the light most favorable to the State, sufficient evidence supports the verdict.

When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

The criminal charge here arises under K.S.A. 2018 Supp. 21-5812(a)(1)(A), (b)(1). That law defines aggravated arson as: "Knowingly, by means of fire or explosive damaging any building or property which ... [i]s a dwelling in which another person has any interest without the consent of such other person." The charge becomes aggravated if it is "[c]ommitted upon a building or property in which there is a human being."

This fire started on the 12th floor of an occupied apartment building where about 75 people were living. It caused extensive damage to Coble's apartment and the one below. But Coble limits his argument. He contends the State failed to prove beyond a reasonable doubt only that he acted knowingly that morning of June 21, 2016. In his view, the State "presented no evidence that Mr. Coble would have been reasonably certain that his experiment would cause the smoke damage."

A verdict may be supported by circumstantial evidence, if that evidence provides a basis for a reasonable inference by the fact-finder about the fact in issue. Circumstantial evidence, to be sufficient, need not exclude every other reasonable conclusion. Logsdon , 304 Kan. at 25. A conviction of even the gravest offense can be based on circumstantial evidence. 304 Kan. at 25.

The record establishes that Coble had taken four college chemistry classes. He knew what "personal protection equipment" was and said he was deficient in his "PPE." He used kitty litter around his experiments as a fire precaution. He acknowledged that three of his experiments caused damage in his apartment. He received chemical burns about a week before the June 21 living room event after an experiment mixing muriatic acid and another material to make chlorine gas "flash[ed] over." He acknowledged that the gas also caused him to have respiratory issues so he did not perform that experiment again. Coble admitted that he caused at least 50 chemical exothermic reactions in his apartment before this fire got out of hand. This was another intentional experiment that was uncontrolled.

Based on this evidence, when viewed in a light most favorable to the State, it was reasonable for the jury to find that Coble was experienced. He was aware that bodily harm and property damage were possible from his experiments. He also understood that his experiments warranted precautions. The record shows the State met its burden to prove beyond a reasonable doubt that Coble acted knowingly when he conducted his chemical experiment on June 21, 2016. His conviction is affirmed.

Affirmed.


text:
    Marlin Dwayne WILLIAMS, Appellant, v. STATE of Kansas, Appellee.
    No. 119,413
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019
    Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant, and Marlin D. Williams, appellant pro se.
    Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Marlin Dwayne Williams appeals the district court's summary dismissal of his K.S.A. 60-1507 motion as untimely. He contends that his motion and its accompanying affidavit show his actual innocence, warranting a finding of manifest injustice which excuses the untimeliness of his motion. Finding no manifest injustice, we affirm.

Factual and Procedural Background

Marlin Dwayne Williams was convicted of aggravated trafficking of a person under 18 years old, a felony. The Kansas Supreme Court affirmed Williams' conviction and sentence of 246 months. State v. Williams , 299 Kan. 911, 916, 329 P.3d 400 (2014). The facts of his case, which involved taking his 15-year-old victim from Wichita to Dallas in 2007 to join his prostitution ring, are fully detailed in the Supreme Court's opinion. 299 Kan. at 913-16. We need not repeat them here.

Williams filed his first K.S.A. 60-1507 motion in 2008 but the district court denied it because his direct appeal was pending. Williams filed his second K.S.A. 60-1507 motion in 2014, alleging his trial counsel provided constitutionally deficient representation. The district court summarily denied that motion and we affirmed. Williams v. State , No. 114,200, 2016 WL 7428361 (Kan. App. 2016) (unpublished opinion).

Williams filed his current K.S.A. 60-1507 motion, which underlies this appeal, in 2017. It argues (1) the district court erred by allowing hearsay testimony of the victim; (2) trial counsel failed to investigate key issues surrounding the victim; (3) the district court improperly admitted K.S.A. 60-455 evidence; and (4) the evidence was not sufficient to sustain a conviction for aggravated trafficking. The district court denied the motion as untimely and successive.

Williams moved the court to reconsider, arguing that it should have liberally construed his motion as an actual innocence claim and that a miscarriage of justice would occur if it did not do so. The district court denied Williams' motion to reconsider finding that Williams had not put forth a colorable claim of actual innocence. Williams appeals.

Do the 2016 Amendments to K.S.A. 60-1507(f) Deprive Williams of a Remedy and Violate His Due Process Rights?

We first address Williams' argument that certain amendments made in 2016 to K.S.A. 60-1507 deprive him of a remedy and violate his due process rights. This issue asks us to interpret a statute and presents a question of law over which we have unlimited review. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). Whether due process exists in a particular case is also a question of law over which we have unlimited review. In re Habeas Corpus Application of Pierpoint , 271 Kan. 620, 627, 24 P.3d 128 (2001).

Analysis

Kansas law provides that a defendant has one year from the date a conviction becomes final to file a K.S.A. 60-1507 motion. K.S.A. 2018 Supp. 50-1607(f)(1). A district court may extend that one-year time limit only to prevent manifest injustice. K.S.A. 2018 Supp. 60-1507(f)(2). In determining manifest injustice, we previously applied these three factors set forth in Vontress v. State , 299 Kan. 607, 616-17, 325 P.3d 1114 (2014) :

"[W]hether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e. , factual, not legal, innocence." 299 Kan. at 616.

But the Legislature amended K.S.A. 60-1507(f) effective July 1, 2016, to state:

"For purposes of finding manifest injustice under this section, the court's inquiry shall be limited to determining why the prisoner failed to file the motion within the one-year time limitation or whether the prisoner makes a colorable claim of actual innocence. As used herein, the term actual innocence requires the prisoner to show it is more likely than not that no reasonable juror would have convicted the prisoner in light of new evidence." K.S.A. 2018 Supp. 60-1507(f)(2)(A).

This 2016 amendment eliminated the second Vontress factor-whether the merits of the movant's claim raise substantial issues of law or fact that render it deserving of consideration. The Kansas Supreme Court discussed this change in State v. White , 308 Kan. 491, 421 P.3d 718 (2018). There, as here, the movant filed a K.S.A. 60-1507 motion after the one-year deadline but argued that the manifest injustice exception warranted its consideration. The White court held that the 2016 amendments to K.S.A. 60-1507 do not apply retroactively; courts should apply the three Vontress factors for K.S.A. 60-1507 motions filed before July 1, 2016, but should use the two statutory factors for those filed after that date. White , 308 Kan. at 498-99. The White court noted that the amendment "took away more than one factor. It prohibited courts from looking at all circumstances and assessing them in totality." 308 Kan. at 501. In reaching that ruling, the White court found that the defendant, "like other pre-July 1, 2016 movants[,] had a vested right to argue the Vontress test, including the second factor and any other factor that might establish manifest injustice." 308 Kan. at 502. Williams claims that the elimination of the three-factor Vontress test and its totality of circumstances analysis infringes on his vested right to a remedy and violates his due process rights.

But Williams fails to acknowledge White 's limitation that the right to argue the Vontress factors was vested only as to pre-July 1, 2016 movants. Williams is not one of those movants because he filed his 60-1507 motion in 2017, after the 2016 amendments took effect. And those amendments do not eliminate his possibility of relief. Williams still has a right to bring these claims within a year. And if he files a K.S.A. 60-1507 motion outside that time, the court may still consider his claim if he shows manifest injustice. The statute allows courts to consider why the movant failed to file the motion within the one-year time frame and whether the movant makes a colorable claim of actual innocence. K.S.A. 2018 Supp. 60-1507(f)(2)(A). The 2016 statutory amendments thus do not deprive Williams of a vested right or eliminate his possibility of relief. As a result, we apply the 2016 amendments, rather than Vontress , in reviewing whether Williams' motion, filed in 2017, showed manifest injustice excusing the untimeliness of his motion.

Did the District Court Properly Deny Williams' Motion as Untimely?

A district court has three options when handling a K.S.A. 60-1507 motion:

" '(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State , 300 Kan. 875, 881, 335 P.3d 1162 (2014).

When the district court summarily denies a K.S.A. 60-1507 motion, as it did here, we review the issue de novo to determine whether the motion, files, and records of the case conclusively establish the movant was not entitled to relief. 300 Kan. at 881.

Williams does not dispute that his motion is untimely-his direct appeal was final in July 2014, but he did not file this K.S.A. 60-1507 motion until October 2017. He claims, however, that he properly alleged actual innocence as described in K.S.A. 2018 Supp. 60-1507(f)(2)(A), so manifest injustice would occur if the district court did not extend the one-year time limit.

To support his claim of actual innocence, Williams attached to his motion an affidavit executed in 2010 by Demetrius Patterson. In that affidavit, Patterson states that he would been a trial witness and could have contradicted the victim, L.M.'s, testimony:

"I am fully aware of who [L.M.] is. On or between April 1, 2007 and May 5, 2007, [L.M] was not in my presents [sic], nor was I riding in the car with Marlin Williams.
....
"Once I arrived here at [El Dorado Correctional Facility] I saw Marlin Williams, and we were talking about how [L.M.] implicated me as being with Marlin Williams on or between April 1, 2007 and May 5, 2007.
"If the Wichita Police Department would have attempted to interview me after [L.M.] made the statements she was in my presents [sic] between the above dates, I would have told the truth of the matter to clear my name, stating I was not around [L.M.] during that those dates. The Wichita Police Department and Defense Attorney made no attempt to locate me even though my first name (Demetrius) was mentioned in Marlin Williams police report, and could have been a witness for the State or Defense. I am a known gang member noted in the Wichita Police Department Gang File as Demetrius Patterson AKA Little Cheese. Furthermore, at that time I was on State Parole and easily accessible."

We find that Williams' claim of actual innocence fails for two reasons. First, in denying Williams' motion, the district court noted that it was not persuaded that Patterson's affidavit could not have been submitted with Williams' 2014 K.S.A. 60-1507 Motion, and "Movant provides no explanation other [than] it was simply not available." We agree that the record shows Williams had Patterson's affidavit in his possession in 2010 and shows no reason why Williams did not include it in his earlier 60-1507 motion which alleged ineffective assistance of counsel.

Second, this affidavit is not material enough to show that Williams is actually innocent. K.S.A. 2018 Supp. 60-1507(f)(2)(A) states that "the term actual innocence requires the prisoner to show that it is more likely than not that no reasonable jury would have convicted the prisoner in light of new evidence."

The affidavit contradicts little of L.M.'s testimony, her testimony alone is sufficient to warrant Williams' conviction, and the record lacks evidence corroborating Patterson's allegations in his affidavit. But the record contains evidence supporting L.M.'s testimony, as well as that of other witnesses who testified. Two hotel managers in Dallas, Texas, corroborated that Williams stayed at their hotels on the dates L.M. said she stayed there with Williams, Casper, and the other female in late April and early May 2007. And Williams admitted to having contact with L.M. in Dallas, Texas.

Even if we credit Patterson's assertion that he was not with L.M. or Williams on the dates at issue, this fails to exonerate Williams of his crime. L.M. and other trial witnesses testified to much more than whether Patterson was in the car with Williams and L.M. from April 1, 2007, to May 5, 2007. L.M. testified in detail about her encounters with Williams and his acts of prostituting her. L.M. testified that she first met Williams when Patterson (whom she identified as Little Cheese) came to the house where she was staying. L.M. spoke with Williams, who was still in the car, while Patterson went inside the house. A few minutes later, Williams came back to the house, asked L.M. how old she was, and if she wanted to go to Texas that night. L.M. then traveled with a person she identified as Casper, Williams, and another female to the Dallas area. Patterson was seemingly uninvolved at this point, and the affidavit does nothing to dispute the most incriminating facts.

Considering all the evidence in the case, we find no error in the district court's determination that the proffered information was immaterial and would not have shown Williams' actual innocence.

Williams also argues that the district court erred by determining Patterson was not credible without holding an evidentiary hearing, citing Beauclair v. State , 308 Kan. 284, 295, 419 P.3d 1180 (2018) ("The district court is required to grant a new trial only when satisfied the recantation is true and material. ... [A] district court cannot make such a credibility determination without an evidentiary hearing. ... [C]redibility cannot generally be determined through cold affidavit testimony.") (quoting Neer v. State , No. 111,230, 2015 WL 1310815, at *4 [Kan. App. 2015] [unpublished opinion] ). But any error in assessing Patterson's credibility without an evidentiary hearing was harmless, as the information proffered in the affidavit, even if fully credited, is not enough to show Williams' innocence.

Upon a de novo review of the record and files of the case, we find that Williams' 2017 K.S.A. 60-1507 motion, including Patterson's affidavit, does not establish manifest injustice as is necessary to overcome its untimeliness. We find it unnecessary to determine whether Williams' motion was also successive.

Did the District Court Unreasonably Apply Fischer?

Williams raises several arguments in his supplemental pro se brief. We have addressed those claims of error above except for his claim that the district court's dismissal of his K.S.A. 60-1507 motion "was a direct result of an unreasonable application of Fischer v. State ." The district court quoted Fischer v. State , 296 Kan. 808, 295 P.3d 560 (2013), when articulating the three options it had when reviewing Williams' K.S.A. 60-1507 motion.

Williams argues that the district court erred by calling him "Defendant" in its order denying his K.S.A. 60-1507 motion. He argues that because his direct appeal was over, he could be considered the " 'Movant,' the 'Complainant,' the 'Plaintiff,' the 'Petitioner,' 'Marlin D. Williams,' and/or any combination thereof," but not the defendant. So the district court's finding that the defendant had no right to relief failed to show that he was not entitled to relief in this civil motion.

Even assuming that the district court misspoke in calling Williams "the defendant" in this civil action, Williams has shown no prejudice from that mischaracterization. The district court properly summarily denied Williams' 60-1507 motion by finding that the motion, files, and records conclusively showed he was entitled to no relief. The district court was not confused about the nature of this motion and did not refer to anyone but Williams as the subject of its ruling. It reviewed the facts, applied the correct law to the facts, and properly resolved Williams' K.S.A. 60-1507 motion under the standard set out in Fischer . It then determined that Williams' motion was untimely, successive, and failed to establish manifest injustice that would warrant its review. After reviewing the motion and all the files and records of the case, we find no error in the district court's summary denial of Williams' K.S.A. 60-1507 motion.

Affirmed.