State v. Swaim ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,457
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
PAUL WALTER SWAIM,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; C. WILLIAM OSSMANN, judge. Opinion filed August 27,
2021. Sentence vacated and case remanded with directions.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and WARNER, JJ.
PER CURIAM: Contending that an out-of-state conviction should not have been
classified as a person felony to determine his criminal history score, Paul Swaim appeals
his sentence. The State agrees. Thus, we vacate Swaim's sentence and remand the case
for resentencing.
Swaim pled guilty to kidnapping and attempted second-degree murder. But before
sentencing, he objected to the classification of his Missouri first-degree burglary
conviction as a person felony. At the sentencing hearing, both parties agreed that the
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Missouri burglary conviction would be classified as a nonperson felony under the
identical-or-narrower test set forth in State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d
984 (2018).
But the district court held for the State and ruled that the 2019 amendments to
K.S.A. 21-6811(e)(3) controlled the conviction's classification instead of Wetrich. Those
amendments nullified the analysis used in Wetrich. See L. 2019, ch. 59, § 13. The court
classified Swaim's Missouri first-degree burglary conviction as a person felony. Then,
using a criminal history score of B, the court sentenced Swaim to 216 months'
imprisonment for kidnapping and a consecutive term of 61 months' imprisonment for
attempted second-degree murder.
On appeal, Swaim contends that the 2019 amendments to K.S.A. 21-6811(e)(3) do
not operate retroactively and that the district court should have applied the identical-or-
narrower test set forth in Wetrich to classify his prior Missouri conviction as a nonperson
crime. The State agrees and asks that we remand for resentencing.
We agree with the parties. We must vacate Swaim's sentence for kidnapping since
that is his primary conviction. His sentence for attempted second-degree murder is
unaffected by this criminal history error. The penalties for a crime are fixed on the date
the offense was committed. State v. Gales, 312 Kan. 475, 481, 476 P.3d 412 (2020).
Swaim committed these crimes in August 2017. Two years later, the statute was amended
effective May 23, 2019. L. 2019, ch. 59, § 13. Because Swaim's convictions arose before
the effective date of the amendments, they do not control the determination of Swaim's
criminal history score. See State v. Hillard, 313 Kan. 830, 2021 WL 3117934, at *14
(Kan. July 23, 2021).
Swaim also contends that the use of his prior convictions to increase his sentence
without proving the convictions to a jury beyond a reasonable doubt violated his rights
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under section 5 of the Kansas Constitution Bill of Rights and the Sixth Amendment to the
United States Constitution.
Our Supreme Court has repeatedly rejected this challenge over the United States
Constitution. See, e.g., State v. Sullivan, 307 Kan. 697, 708, 414 P.3d 737 (2018). In line
with that holding, we reject the argument.
Recently, our Supreme Court also rejected this challenge over the Kansas
Constitution. In State v. Albano, 313 Kan. 638, Syl. ¶ 4, 487 P.3d 750 (2021), the court
held: "Section 5 of the Kansas Constitution Bill of Rights does not guarantee defendants
the right to have a jury determine the existence of sentence-enhancing prior convictions
under the revised Kansas Sentencing Guidelines Act."
We see no indication that our Supreme Court is departing from these positions.
Thus, we are duty-bound to follow this precedent. State v. Rodriguez, 305 Kan. 1139,
1144, 390 P.3d 903 (2017). Swaim's sentence does not violate either Constitution.
We vacate Swaim's kidnapping sentence and remand to the district court for
determination of the proper criminal history score and resentencing.
Sentence vacated and case remanded with directions.
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