State v. Howell ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,650
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANDREW MICHAEL HOWELL,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed September 2, 2022.
Sentence vacated and case remanded with directions.
James M. Latta, 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 ARNOLD-BURGER, C.J., SCHROEDER and WARNER, JJ.
PER CURIAM: Andrew Howell appeals his sentence, claiming the district court
erroneously included a juvenile adjudication for reckless criminal threat in its calculation
of his criminal-history score. After reviewing the record and the parties' arguments, we
agree that Howell's criminal-threat adjudication should not have been considered as part
of his criminal history at sentencing. We therefore vacate Howell's sentence and remand
the case for resentencing.
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FACTUAL AND PROCEDURAL BACKGROUND
Howell pleaded no contest to one count each of criminal possession of a weapon
and fleeing or attempting to elude an officer, charges arising from an incident in October
2020. After the district court accepted Howell's plea, the State prepared a presentence
investigation report to aggregate Howell's criminal history and calculate his presumptive
sentence. The summary of Howell's criminal history in that report included a 2019
juvenile adjudication for criminal threat—his only person felony. Based in part on this
adjudication, the report calculated Howell's criminal-history score as C.
Howell's criminal-threat adjudication resulted from a no-contest plea to
"unlawfully threaten[ing] to commit violence, communicated with the intent to place
another . . . in fear or in reckless disregard of the risk of causing such fear." A few
months after Howell served his sentence for that offense, the Kansas Supreme Court
decided State v. Boettger, 310 Kan. 800, 450 P.3d 805 (2019), cert denied, 140 S. Ct.
1956 (2020). That case found the offense of reckless criminal threat under K.S.A. 2018
Supp. 21-5415(a)(1) to be unconstitutional. 310 Kan. 800, Syl. ¶ 3.
Relying on Boettger, Howell challenged the report's inclusion of his previous
criminal-threat adjudication when calculating his criminal-history score for his sentence
in this case. In response, the State submitted the complaint from Howell's juvenile
adjudication in an effort to show that Howell's criminal-threat offense had been
intentional, not reckless, and therefore should be considered part of his criminal history.
The district court denied Howell's challenge, finding the complaint showed Howell had
pleaded no contest to committing both intentional and reckless criminal threat. Thus, the
court found that Howell's previous adjudication should be included in his criminal-history
score. The court then followed the plea agreement, imposing an underlying 22-month
prison sentence and granting Howell 18 months' probation. Howell appeals.
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DISCUSSION
Howell argues that the district court erred in using his criminal-threat adjudication
to calculate his criminal-history score. He asserts that the State failed to prove he was
convicted of the intentional version of that offense—the only crime that may be
considered after Boettger—so the district court could not use the adjudication to calculate
his criminal-history score. We agree.
As a preliminary matter, we note that appellate courts typically lack jurisdiction to
review a sentence that is within the presumptive range under the Kansas Sentencing
Guidelines or results from a plea agreement. K.S.A. 2021 Supp. 21-6820(c)(1)-(2).
Howell's sentence falls into both categories. But an appellate court may consider a claim
that "the sentencing court erred in either including or excluding recognition of a prior
conviction or juvenile adjudication for criminal history scoring purposes." K.S.A. 2021
Supp. 21-6820(e)(2). A court can also correct an illegal sentence at any time. K.S.A.
2021 Supp. 22-3504(a). We thus have jurisdiction over Howell's appeal, which raises an
issue over which our review is unlimited. See State v. Roberts, 314 Kan. 316, 319-20,
498 P.3d 725 (2021).
Under Kansas law, a person's sentence generally results from a combination of the
severity of the crime and his or her criminal history. See K.S.A. 2021 Supp. 21-6804(a);
K.S.A. 2021 Supp. 21-6805(a). The State has the burden to prove a person's criminal
history by a preponderance of the evidence. State v. Obregon, 309 Kan. 1267, 1275, 444
P.3d 331 (2019). When calculating someone's criminal-history score, the district court
may not use a previous juvenile adjudication under a statute that an appellate court has
since declared unconstitutional. K.S.A. 2021 Supp. 21-6810(d)(9). The question we must
consider is whether the State presented sufficient evidence at sentencing to show that
Howell had been adjudicated for making an intentional criminal threat. See State v.
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Martinez-Guerrero, No. 123,447, 2022 WL 68543, at *3 (Kan. App. 2022) (unpublished
opinion).
The only evidence offered by the State regarding Howell's criminal-threat
adjudication was the complaint charging him with the crime. That complaint shows that
Howell pleaded no contest to "unlawfully threaten[ing] to commit violence,
communicated with the intent to place another . . . in fear or in reckless disregard of the
risk of causing such fear; contrary to K.S.A. 2018 Supp. 21-5415(a)(1)(c)(1)." (Emphasis
added.) Howell argues that the plain language of the complaint shows he pleaded to
intentional "or" reckless criminal threat, while the State asserts this same language shows
he pleaded to both versions.
Previous panels of this court have considered this issue and have agreed with
Howell's interpretation. In Martinez-Guerrero, the defendant also challenged the decision
to include a past criminal-threat conviction when calculating his criminal-history score.
The conviction at issue resulted from a no-contest plea to "'unlawfully and feloniously
commit[ting] a threat to commit violence with the intent of placing [the victim] in fear or
with reckless disregard of causing such fear.'" 2022 WL 68543, at *1. At sentencing for
the new offense, the State presented this criminal-threat plea, along with a more detailed
factual basis that described the circumstances behind the threat. The district court found
that this was enough to prove the defendant had committed the intentional version of the
crime.
This court reversed on appeal. The panel found that the State had not submitted
sufficient evidence to show the defendant had been convicted of intentional criminal
threat. 2022 WL 68543, at *6. The panel noted that "[a] factual basis only needed to be
established for reckless or intentional criminal threat for the district court to accept [the
defendant]'s plea because that was how he was charged." 2022 WL 68543, at *6. So the
defendant had not necessarily pleaded to both versions, and "[t]he State still had to prove
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[the defendant]'s prior criminal threat conviction was for an intentional threat." 2022 WL
68543, at *6. Because the State failed to do so, the panel vacated the sentence and
remanded for resentencing. 2022 WL 68543, at *6-7.
The issue arose again recently in State v. Jackson, No. 124,271, 2022 WL
1906940 (Kan. App. 2022) (unpublished opinion), petition for rev. filed June 8, 2022.
There, the defendant had twice pleaded no contest to making a threat "'with the intent to
place another in fear or in reckless disregard of the risk of causing such fear.'" 2022 WL
1906940, at *1. Besides the charging documents from these convictions, the State also
provided the plea-hearing transcripts, which outlined the factual bases for the charges.
The district court decided it could not determine whether the defendant had pleaded to the
intentional or reckless versions and thus did not count the convictions in its criminal-
history-score calculations. The State appealed. 2022 WL 1906940, at *2.
This court affirmed. Despite noting that the defendant "was charged and [pleaded]
no contest to both versions of criminal threat in both cases," the court agreed that the
charging documents and plea transcripts did not show whether the defendant had
committed intentional or reckless criminal threat. (Emphasis added.) 2022 WL 1906940,
at *5. The court then discussed Martinez-Guerrero, which it found "nearly identical,"
before concluding that the district court properly excluded the criminal-threat convictions
from its criminal-history-score calculations. Jackson, 2022 WL 1906940, at *5.
These cases illustrate that regardless of how one interprets this disjunctive plea
language, conduct can only constitute—and give rise to a conviction of—either a reckless
or an intentional criminal threat. Jackson, 2022 WL 1906940, at *5; Martinez-Guerrero,
2022 WL 68543, at *6; see also State v. Garza, 290 Kan. 1021, 1035-36, 236 P.3d 501(2010) (defendant can only be convicted of one crime when charged with two in the
alternative). While we are not bound by Martinez-Guerrero or Jackson, we find this
reasoning persuasive.
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Here, the State presented even sparser evidence at sentencing than in Martinez-
Guerrero and Jackson. The State provided no information about the criminal-threat
charge that would allow a court to determine whether the threat was intentional or
reckless. Instead, it relied solely on the complaint. But the plain language of the
complaint shows that Howell pleaded no contest to making a threat "with the intent to
place another . . . in fear or in reckless disregard of the risk of causing such fear."
(Emphasis added.) In other words, Howell did not contest that he committed either a
reckless criminal threat or an intentional criminal threat. This statement is insufficient to
show that Howell's adjudication resulted from intentional conduct.
Recognizing this evidentiary deficiency, the State argues that Howell waived any
challenge to how the district court might score his criminal-threat adjudication when he
pleaded no contest to that offense. The State also argues that his plea to an alternative-
means crime carried a "super-sufficiency" evidentiary requirement, meaning that the fact
that the court accepted his plea necessarily means there was sufficient evidence that he
committed both versions of the crime. Neither argument is persuasive.
Criminal defendants waive all nonjurisdictional challenges to a conviction,
including constitutional defects, when they enter no-contest pleas. State v. Reu-El, 306
Kan. 460, 475, 394 P.3d 884 (2017); see K.S.A. 2021 Supp. 22-3602(a). But Howell is
not challenging his previous criminal-threat adjudication; he is challenging his current
sentence in this case. He does not dispute the existence of his previous criminal-threat
adjudication; he only disputes whether the district court could use that adjudication when
calculating his criminal-history score. And Kansas law explicitly allows such challenges,
with no restrictions against convictions that result from a plea. See K.S.A. 2021 Supp.
21-6810(d)(9); K.S.A. 2021 Supp. 22-3504(a). Howell's past criminal-threat plea did not
waive his current sentencing challenge. See Martinez-Guerrero, 2022 WL 68543, at *6.
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We are similarly unpersuaded by the State's efforts to impute an alternative-means
finding to the district court's acceptance of Howell's criminal-threat plea. It is true that
our caselaw has imposed a "super-sufficiency" requirement when a jury considers an
alternative-means crime, meaning the evidence must support each alternative means of
committing the offense. This rule protects a criminal defendant's right to jury unanimity.
State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012). But Howell's criminal-threat
adjudication resulted from a plea, not a jury verdict. As Martinez-Guerrero noted, a
defendant pleading no contest "'is agreeing to refrain from contesting, rather than
affirmatively voicing his [or her] guilt to, the charge or charges.'" 2022 WL 68543, at *6
(quoting State v. Case, 289 Kan. 457, 461, 213 P.3d 429 [2009]).
Even if we agreed with the State that Howell's plea to intentional or reckless
criminal threat demanded a factual basis for each version of that offense, that
determination would not resolve the question before us. Instead, we come full circle to
our initial observation—that the State failed to prove which version of the offense he was
ultimately adjudicated of. See State v. Johnson, 310 Kan. 835, 843, 450 P.3d 790 (2019)
(evidence supported findings of both reckless and intentional criminal threat, but that was
not enough to show jury convicted defendant of the intentional offense); Jackson, 2022
WL 1906940, at *5 (State failed to prove convictions were for intentional version even
though defendant "was charged and pled no contest to both versions").
Thus, the State did not carry its burden of proof at sentencing to show Howell had
committed an intentional criminal threat, and the district court should not have included
Howell's criminal-threat adjudication in his criminal-history score. We thus vacate
Howell's sentence and remand the case for resentencing consistent with this opinion.
Sentence vacated and case remanded with directions.
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