State v. Pollman , 441 P.3d 511 ( 2019 )

No. 118,672
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ROBERT KENTON POLLMAN JR.,
Appellant.
SYLLABUS BY THE COURT
1.
A challenge to a defendant's criminal history score may be raised for the first time
on appeal under K.S.A. 22-3504 as a challenge to the legality of the sentence but not to
collaterally attack a conviction.
2.
A defendant is permitted to plead to a nonexistent or hypothetical crime as part of
a plea agreement so long as the defendant (1) was initially brought into court on a valid
pleading; (2) received a beneficial plea agreement; and (3) voluntarily and knowingly
entered into the plea agreement.
3.
If a defendant enters into a beneficial plea agreement voluntarily and intelligently,
he or she forfeits the right to collaterally attack any underlying infirmity in the charge to
which he or she pled.
1
4.
A judgment entered on a plea to a nonexistent crime may be based upon no
objective state of facts, on a hypothetical crime, or on a hypothetical situation without
objective basis.
5.
When the charging document alleges conduct that constitutes a crime and then the
defendant voluntarily chooses to beneficially plea to a nonexistent offense, the court's
jurisdiction is not lost simply because the result of the bargaining is a plea to a
nonexistent offense.
6.
Under the circumstances of this case, defendant's conviction of a nonexistent
crime is a verified conviction and is scored for criminal history purposes as an omitted,
unranked, or unclassified felony.
Appeal from Finney District Court; MICHAEL L. QUINT, judge. Opinion filed May 10, 2019.
Sentence vacated and case remanded for resentencing.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Brian R. Sherwood, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., ATCHESON and GARDNER, JJ.
GARDNER, J.: Robert Kenton Pollman Jr. appeals the sentence imposed in 2017
for his conviction of attempted possession of methamphetamine. He claims the district
court erroneously classified his 2011 conviction as a person felony in computing his
criminal history. But Pollman's claim is no run-of-the-mill claim of an illegal sentence.
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Instead, the parties agree that the crime to which Pollman pleaded and which was later
classified as a prior felony for purposes of his criminal history did not exist.
We have repeatedly held that a defendant may plead to a nonexistent crime as part
of a beneficial plea agreement so long as the defendant was initially brought into court on
a valid pleading and voluntarily and knowingly entered into the plea agreement. That is
what happened here. The question before us, which we have not previously determined,
is how to classify a nonexistent crime for purposes of a defendant's criminal history
score.
We reject Pollman's claim that his plea of guilty to a nonexistent offense was a
nullity, finding a valid distinction between an attack on a conviction based on a
nonexistent offense following a jury verdict and a nullity claim raised after a plea of
guilty or no contest. Even though a jury verdict would not be sustainable, a plea presents
an entirely different situation. We find Pollman's 2011 verified conviction should be
scored as an omitted, unranked, or unclassified felony. The parties agree on appeal that
Pollman's 2011 nonexistent offense was a nonperson offense. Because the district court
scored it as a person felony instead of a nonperson felony, we vacate his sentence and
remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
In May 27, 2011, the State charged Pollman with discharging a firearm at an
occupied building or vehicle and two counts of criminal damage to property. Specifically,
the complaint/information charged in Count I that on May 15, 2011, Pollman
intentionally discharged a firearm at an occupied motor vehicle—a 2008 Dodge pickup,
occupied by Shawnda Conner, in violation of K.S.A. 21-4219(b), a severity level 7
person felony. Count II charged Pollman with criminal damage to property of $1,000 to
less than $25,000, a severity level 9 nonperson felony. Count III charged Pollman with
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criminal damage to Conner's property—shorts and/or suitcase, less than $1,000, a class B
nonperson misdemeanor.
Pollman then entered a no-contest plea to discharge of a firearm at an unoccupied
vehicle. K.S.A. 21-4219 prohibited criminal discharge of a firearm at an occupied
building, at an unoccupied dwelling, or at an occupied vehicle and categorized all three as
person felonies. That statute did not, however, prohibit criminal discharge of a firearm at
an unoccupied vehicle. Pollman thus agreed to plead to a nonexistent offense.
We do not mean to suggest that Pollman's acts were lawful, as clearly they were
not. Pollman's admitted act of shooting a firearm at an unoccupied vehicle could
constitute a number of crimes, depending on facts not shown by our limited record. See,
e.g., K.S.A. 2010 Supp. 21-4217(a)(1) (prohibiting discharge of any firearm on any land
of another without permission); K.S.A. 2010 Supp. 21-4217(a)(2) (prohibiting discharge
of any firearm upon or from any public road or right-of-way that adjoins land of another
without permission). If nothing else, it constituted criminal damage to property. K.S.A.
21-3720 (prohibiting damaging another's property without consent).
Not surprisingly, no transcript of the 2011 plea hearing is included in the record on
appeal from Pollman's 2017 conviction. As a result, we have no facts to show why the
parties agreed to a plea to the amended charge of discharge of a firearm at an unoccupied
vehicle. The parties could have erroneously believed that K.S.A. 21-4219 prohibited
criminal discharge of a firearm at an unoccupied vehicle. That statute did, after all,
prohibit criminal discharge of a firearm at an occupied building, at an unoccupied
dwelling, and at an occupied vehicle. It seems more reasonable to believe that the parties
made an error of law than that they intentionally agreed to fabricate a nonexistent crime
out of whole cloth for Pollman's benefit. Why the parties agreed to this plea cannot now
be determined. Either way, Pollman and the State agreed he would plead to a crime that
did not exist.
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Pursuant to the plea, the State dismissed the two counts of criminal damage to
property. The district court categorized Pollman's nonexistent offense as a severity level 8
person felony and ordered Pollman to pay restitution in the amount of $4,278.72. The
district court sentenced Pollman to 10 months in the custody of the Department of
Corrections but granted him probation for 18 months for discharge of a firearm at an
unoccupied vehicle. As far as we know, Pollman made no attempt to challenge his 2011
conviction until late in his current appeal arising from his 2017 sentence.
After a traffic stop on January 29, 2017, the State charged Pollman with
possession of methamphetamine and driving on a suspended license. He eventually
pleaded to attempted possession of methamphetamine. At his sentencing hearing the
district court classified Pollman's criminal history score as a C, without objection, based
partly on the nonexistent 2011 offense which the district court scored as a person felony.
The court imposed a prison sentence of 24 months with 12 months of postrelease
supervision for his 2017 crime.
Pollman appealed from his 2017 sentencing, contending that, for purposes of
calculating his criminal history score in this case, the district court should have classified
his nonexistent 2011 offense as a nonperson misdemeanor rather than as a person felony.
His sole request was that the court vacate his sentence and remand for resentencing
pursuant to the correct criminal history score of F. He argued that either by using the rule
of lenity or by treating his 2011 conviction as an "unclassified crime," we should score
his 2011 conviction as a nonperson misdemeanor.
During oral arguments, this court raised an issue the parties had not raised,
questioning the validity of the 2011 conviction. The court permitted the parties to address
that issue in supplemental briefs and they did so. Pollman then echoed the dissent's
position that because his 2011 conviction was for a noncriminal act it was invalid or void
for purposes of his criminal history.
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Preservation
Pollman concedes that he did not raise any issue regarding his sentence in the
district court, but he contends that it is properly considered by this court as an illegal
sentence under K.S.A. 22-3504. An illegal sentence may be corrected at any time, even
for the first time on appeal. State v. McLinn, 307 Kan. 307, 349, 409 P.3d 1 (2018).
Kansas appellate courts have previously considered legal challenges to criminal history
scores, like Pollman's, for the first time on appeal as challenges to the legality of the
sentences. See State v. Sturgis, 307 Kan. 565, 572, 412 P.3d 997 (2018); State v.
Campbell, 307 Kan. 130, 133, 407 P.3d 240 (2017). We do the same.
SHOULD POLLMAN'S 2011 CONVICTION FOR A NONEXISTENT OFFENSE BE USED IN HIS
CRIMINAL HISTORY SCORE?
We first examine whether Pollman's 2011 conviction for the nonexistent offense
of discharging a firearm at an unoccupied vehicle should be used in his criminal history
score. This requires us to examine Pollman's argument that his conviction is invalid
because it was based on a nonexistent or hypothetical crime.
A. Pollman's 2011 conviction for a nonexistent offense was a conviction.
Pollman initially stated that he was not challenging his underlying 2011
conviction. Instead, his brief recognized that his 2011 conviction was likely valid even
though K.S.A. 21-4219 did not prohibit discharging a firearm at an unoccupied vehicle:
"Nonetheless, the conviction is likely valid, and certainly not challenged here.
Indeed, a defendant is permitted to plead to a nonexistent crime or hypothetical crime as
part of a plea agreement, so long as the defendant [meets the three conditions stated in]
McPherson v. State, 38 Kan. App. 2d 276, 285, 163 P.3d 1257 (2007)."
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Pollman changed his position in his supplemental brief, contending that his 2011
conviction was invalid because it was based on a nonexistent or hypothetical crime so it
could not be counted in his criminal history. But Pollman cannot use this appeal which
solely challenges his 2017 sentencing to attack his 2011 conviction, as Pollman now
invites us to do. "K.S.A. 22-3504 is not a vehicle for a collateral attack on a conviction."
State v. Williams, 283 Kan. 492, 495-96, 153 P.3d 520 (2007) (citing State v. Nash, 281
Kan. 600, Syl. ¶ 2, 133 P.3d 836 [2006]). Our Supreme Court "has repeatedly stated that
the relief available under K.S.A. 22-3504 is correction of a sentence, not reversal of a
conviction." State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). The same is true
here.
B. Pollman forfeited his right to attack the underlying infirmity in the charge to
which he pleaded no contest.
But even if Pollman's challenge here were distinctively different than the typical
K.S.A. 22-3504 motion, Pollman has forfeited his right to attack the underlying infirmity
in the charge to which he pleaded no contest. Pollman cannot consider his 2011
conviction to be valid for all purposes but his criminal history. The fact of his 2011
conviction has been established and cannot be collaterally attacked now, as the following
cases establish.
Kansas cases
This issue has been addressed in a related context several times. The procedural
posture of these cases differs from Pollman's but not significantly so. In Spencer v. State,
24 Kan. App. 2d 125, 126, 942 P.2d 646 (1997), aff'd on other grounds 264 Kan. 4, 954
P.2d 1088 (1998), we found, when reviewing the dismissal of a K.S.A. 60-1507 motion,
that attempted aggravated assault was not a crime. Then, as now, our statutes provided
that a crime was an act or omission defined by law and that no conduct constitutes a
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crime in Kansas unless it is made criminal by statute. K.S.A. 21-3102; K.S.A. 21-3105.
Yet we held that a defendant may plead to a nonexistent crime as part of a plea agreement
so long as the defendant (1) was initially brought into court on a valid pleading; (2)
received a beneficial plea agreement; and (3) voluntarily and knowingly entered into the
plea agreement. Spencer, 24 Kan. App. 2d at 129. We reached the conclusion that one
could validly plead to a crime that "may not be logically or technically consistent" but
which could be upheld, "because the defendant received the benefit of a bargain into
which he freely entered." 24 Kan. App. 2d at 128-29. We further held that "if a defendant
enters into a plea agreement voluntarily and intelligently, he or she forfeits the right to
attack the underlying infirmity in the charge to which he or she pled." 24 Kan. App. 2d at
129. Our Supreme Court, on review, held that attempted aggravated assault was, in fact, a
crime, so Spencer had not pleaded to a nonexistent crime. 264 Kan. at 5-6, 8. It thus did
not reach the Court of Appeals' analysis.
In Easterwood v. State, 273 Kan. 361, 44 P.3d 1209, cert. denied 537 U.S. 951
(2002), the movant filed a K.S.A. 60-1507 motion arguing that his conviction should be
overturned due to a then recent change in the felony-murder rule. But our Supreme Court
held that Easterwood had knowingly waived his right to challenge his conviction at trial
or through a direct appeal and pled guilty to obtain a favorable plea agreement, so he
could not collaterally attack his conviction. 273 Kan. 361-62. Our Supreme Court
acknowledged the Court of Appeals' holding in Spencer that a defendant could plead
guilty to a nonexistent crime, yet it did not reject or disapprove of that analysis. 273 Kan.
at 382. Instead, the Easterwood court focused on the effect of a plea. It affirmed
Easterwood's convictions and refused to allow him to challenge a voluntary and knowing
plea based on a later favorable ruling, concluding that Easterwood had invited the error to
receive a favorable plea bargain. 273 Kan. at 383.
The Kansas Supreme Court then denied review on two other Kansas Court of
Appeals cases that cited Spencer favorably for the proposition that a defendant may plead
8
to a nonexistent crime. State v. Luthi, No. 91,409, 2004 WL 2927742, at *6 (Kan. App.
2004) (unpublished opinion) (motion to withdraw a plea), rev. denied 279 Kan. 1009
(2005); Mills v. State, No. 89,012, 2003 WL 22387749, at *1 (Kan. App. 2003)
(unpublished opinion) (K.S.A. 60-1507 motion), rev. denied 277 Kan. 924 (2004). Luthi
also relied on Spencer's holding that the defendant "'forfeits the right to attack the
underlying infirmity in the charge to which he or she pled.'" 2004 WL 2927742, at *6.
Then came McPherson v. State, 38 Kan. App. 2d 276, 163 P.3d 1257 (2007).
McPherson had entered a plea bargain and pleaded no contest to one count of attempted
second-degree unintentional murder—a crime that did not exist. McPherson filed a
K.S.A. 60-1507 motion seeking to reverse his convictions arguing that his due process
rights were violated by his conviction and sentence for a nonexistent crime. The district
court denied McPherson's motion, holding that because McPherson was originally
charged with a valid crime and benefitted from a favorable plea agreement, his plea was
acceptable. The district court also concluded that McPherson forfeited any challenges to
the infirmity of the crime by entering a knowing and voluntary plea.
On appeal, we reaffirmed Spencer, 24 Kan. App. 2d at 129, holding:
"A defendant is permitted to plead to a nonexistent or hypothetical crime as part
of a plea agreement so long as the defendant (1) was initially brought into court on a
valid pleading; (2) received a beneficial plea agreement; and (3) voluntarily and
knowingly entered into the plea agreement." McPherson, 38 Kan. App. 2d 276, Syl. ¶ 2.
We found those three conditions to be met and concluded: "[I]f a defendant enters into a
beneficial plea agreement voluntarily and intelligently, he or she forfeits the right to
attack any underlying infirmity in the charge to which he or she pled." 38 Kan. App. 2d at
284-85. The Kansas Supreme Court did not review McPherson.
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We find McPherson to be well-reasoned and persuasive:
"Although the practice of permitting plea agreements such as this one to stand
may seem illogical at first glance, such agreements serve a legitimate purpose.
Compromises have long been permitted by our courts. Criminal cases are resolved by
plea bargains virtually every day. As long as due process requirements are met and the
bargain is beneficial to the defendant that defendant cannot later validly collaterally
attack either the plea or bargained-for sentence. To paraphrase the Spencer court, if a
defendant enters into a beneficial plea agreement voluntarily and intelligently, he or she
forfeits the right to attack the underlying infirmity in the charge to which he or she pled.
24 Kan. App. 2d at 129." 38 Kan. App. 2d at 285.
Similarly, in State v. Flores, 292 Kan. 257, 258-60, 252 P.3d 570 (2011), our
Supreme Court upheld the denial of a motion to withdraw a plea where Flores conceded
he received a "'beneficial plea agreement'" but nevertheless contended he pled to a
nonexistent crime because the statutes did not include attempted voluntary manslaughter
as an inherently dangerous felony. The State relied on Spencer, Easterwood, and
McPherson. But once again, our Supreme Court found that the charge to which Flores
ultimately pled—felony murder with an underlying felony of attempted voluntary
manslaughter—was a crime. It did not reach our court's Spencer analysis. Flores, 292
Kan. at 260-61.
We recently applied McPherson in State v. Moral, No. 111,426, 2016 WL 463399,
at *6 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1327 (2017). There,
we found the district court properly accepted a factual basis for Moral's misdemeanor
plea, even though it was inconsistent with the crime charged. "Because Moral accepted
the benefit of his plea agreement knowingly and voluntarily, he cannot attack the factual
basis for his conviction and sentence on appeal." 2016 WL 463399, at *7.
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The above cases illustrate that we have repeatedly applied our court's Spencer
analysis and that our Supreme Court has had several opportunities to disapprove
Spencer's analysis, yet it has never done so. We believe Spencer's analysis is sound. The
rationale in these cases may be based partly on an unspoken application of a species of
judicial estoppel where a litigant cannot induce the court to take a position at one stage of
the litigation when that position is beneficial to the litigant and then later invite the court
to take an opposite position to obtain a different benefit or avoid a detriment. Or the cases
may be based on a contractual benefit-of-the-bargain rationale which binds a defendant
not only to the benefits of his or her plea bargain but also to its ensuing detriments.
Whatever the rationale, our cases teach that Pollman could plead to a nonexistent crime
as part of a plea agreement as long as he was initially brought into court on a valid
pleading, received a beneficial plea agreement, and voluntarily and knowingly entered
into the plea agreement. If those conditions are met, Pollman forfeited the right to attack
the underlying infirmity in the charge to which he pleaded.
Other jurisdictions
Kansas is not an outlier in finding that a defendant can plead to a nonexistent
crime and that by doing so the defendant forfeits any challenges to the infirmity of the
crime. Guilty pleas to defective or nonexistent offenses have often been upheld where the
defendant has entered the plea under a plea bargain agreement from which he received a
substantial benefit, even though a jury conviction on the same charge could not stand.
See, e.g., People v. Myrieckes, 315 Ill. App. 3d 478, 485, 734 N.E.2d 188 (2000) (holding
it is not unlawful for the State and a defendant to enter into a guilty plea for a nonexistent
crime so long as the defendant receives a benefit); People v. Genes, 58 Mich. App. 108,
109-12, 227 N.W.2d 241 (1975) (holding a defendant, charged with second-degree
murder, who had entered a guilty plea to attempted manslaughter to "the benefit of his
bargain" despite an assertion that "there [was] no such crime as attempted
manslaughter"); People v. Guishard, 15 A.D.3d 731, 732, 789 N.Y.S.2d 332 (N.Y. App.
11
Div. 2005) (affirming plea conviction to attempted assault in the first degree although the
crime was a "legal impossibility"); People v. Barker, 221 A.D.2d 1018, 635 N.Y.S.2d
383 (N.Y. App. Div. 1995) (affirming plea conviction to the "nonexistent crime" of
attempted first-degree manslaughter, but noting that "a jury verdict convicting a person of
that crime would be invalid").
The rationale used to sustain a guilty plea to a nonexistent offense is that the
defendant receives the benefit of his bargain, as does the State. Such pleas are sustained
because they are freely sought by a defendant and freely taken as part of a bargain which
was struck for the defendant's benefit: "While there may be question whether a plea to
attempted manslaughter is technically and logically consistent, such a plea should be
sustained on the ground that it was sought by defendant and freely taken as part of a
bargain which was struck for the defendant's benefit." People v. Foster, 19 N.Y.2d 150,
154, 278 N.Y.S.2d 603, 225 N.E.2d 200 (1967). "These courts recognize that it is often in
the interest of defendants to 'plead to a nonexistent crime in satisfaction of an indictment
charging a crime with a heavier penalty' and thereby avoid risking a conviction for the
more serious crime even though a jury could not convict a defendant of a legally
impossible crime. People v. Martinez, 81 N.Y.2d 810, 812, 595 N.Y.S.2d 376, 611
N.E.2d 277 (1993)." Dale v. Holder, 610 F.3d 294, 302-03 (5th Cir. 2010) (reviewing
New York nonexistent crime cases).
Other kinds of nonexistent crimes
The issue of nonexistent crimes typically arises when a defendant is charged with
an unintentional crime, such as involuntary manslaughter, then pleads to an attempted
crime, thus requiring an intent to do an unintentional act. Those factual situations are
legally impossible or logically inconsistent. But cases do not limit the application of the
rule to attempted crimes or to certain kinds of nonexistent crimes. Instead, judgment
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entered on the plea in such situations may be based upon no objective state of facts, on a
hypothetical crime, or on a hypothetical situation without objective basis:
"The judgment entered on the plea in such situations may be based upon no objective
state of facts. It is often a hypothetical crime, and the procedure—authorized by statute—
is justified for the reason that it is in substitution for a charge of crime of a more serious
nature which has been charged but perhaps cannot be proved. . . . [H]is plea may relate to
a hypothetical situation without objective basis . . . ." People v. Griffin, 7 N.Y.2d 511,
516, 199 N.Y.S.2d 674, 166 N.E.2d 684 (1960).
Pollman's 2011 offense was a nonexistent or hypothetical crime.
Whether the offense to which Pollman pleaded was nonexistent because it was a
legal impossibility, a logical impossibility, or a factual impossibility matters not. See
Spencer, 24 Kan. App. 2d at 127 ("'[H]is plea may relate to a hypothetical situation
without objective basis.' 19 N.Y.2d at 154"); People v. Castro, 44 A.D.2d 808, 808, 356
N.Y.S.2d 49 (N.Y. App. Div. 1974) ("[A] defendant may plead to a crime which does not
even exist and the plea is valid. Such a hypothetical crime has no elements, yet their
absence does not affect the plea. [Citation omitted.]"), aff'd 37 N.Y.2d 818, 339 N.E.2d
620 (1975).
Crimes such as attempted involuntary manslaughter are logically inconsistent. But
they are legally impossible only because, as defined by the Legislature, one cannot
attempt to commit an unintentional crime. Pollman's crime of discharging a firearm at an
unoccupied vehicle, although logically consistent and factually possible, was a legal
impossibility for the same reason—it did not fall within the crime as defined by the
Legislature.
The law tolerates a number of legal fictions in the context of pleas. See, e.g., North
Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)
13
(permitting a defendant to avoid the probability of a more severe sentence by pleading
guilty to a crime for which the defendant claims to be innocent); Moral, 2016 WL
463399, at *7 (finding the district court properly accepted a factual basis for the plea,
even though it was inconsistent with the crime charged); State v. Robinson, No. 90411,
2008-Ohio-3972, 2008 WL 3136602 (Ohio Ct. App. 2008) (noting manslaughter is not a
lesser included offense of murder, but "'[i]t is, nevertheless, routinely used as a legal
fiction for purposes of facilitating plea agreements.'") Permitting a defendant to plead to a
nonexistent crime in certain circumstances is a similar legal fiction. Although we heartily
encourage parties to plead to a lesser offense rather than to a nonexistent offense, we find
no legal impediment to counting a conviction of a nonexistent offense in a defendant's
criminal history if Spencer's three requirements are met.
C. We apply the Spencer factors.
Spencer teaches that a defendant may plead to a nonexistent crime as part of a plea
agreement so long as the defendant (1) was initially brought into court on a valid
pleading; (2) received a beneficial plea agreement; and (3) voluntarily and knowingly
entered into the plea agreement. 24 Kan. App. 2d at 129. These elements are met here.
1. Pollman pleaded to a nonexistent crime as part of a plea agreement.
Pollman pleaded to a nonexistent crime as part of his plea agreement. This is
established by the simple, uncontested fact that the Kansas Legislature has not defined as
a crime the acts to which Pollman pleaded—discharging a firearm at an unoccupied
vehicle. The offense to which Pollman pleaded is, in common parlance, a "nonexistent or
hypothetical crime." But the terms are broad and their meaning is plain in encompassing
all offenses not defined as a crime by the Legislature.
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2. Pollman was initially brought into court on a valid pleading.
Pollman does not allege that the complaint/information which originally charged
him with crimes was invalid. Nonetheless, Pollman contends in his supplemental brief
that the district court lacked jurisdiction to convict him of a nonexistent crime.
The existence of subject matter jurisdiction cannot be waived, and its nonexistence
may be challenged at any time. State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016).
So we consider this argument raised for the first time on appeal. A conviction obtained in
a court without subject matter jurisdiction is void. 304 Kan. at 784. But Pollman does not
want us to find his conviction void—instead he wants to retain the benefit of his bargain
and asks us to consider his conviction invalid only for criminal history purposes.
For many years, our cases held that jurisdiction is acquired in a criminal case upon
the filing of a complaint, indictment, or information. See State v. Brown, 280 Kan. 898,
901, 127 P.3d 257 (2006). In 2011, when Pollman was convicted of the nonexistent
offense, we used an elements test:
"'As long as the complaint, indictment, or information alleges the elements of the offense
intended to be charged, sufficiently apprises the defendant of the facts he or she must be
prepared to meet, and is specific enough to determine a subsequent plea of double
jeopardy, the district court has subject matter jurisdiction. State v. Sims, 254 Kan. 1, 9,
862 P.2d 359 (1993).' 280 Kan. at 901." State v. Edwards, 281 Kan. 1334, 1338, 135 P.3d
1251 (2006).
But in 2016, the Kansas Supreme Court corrected that error, finding the Kansas
Constitution is the source of a court's subject matter jurisdiction. Dunn, 304 Kan. at 811.
Thus, the charging document does not establish subject matter jurisdiction for the court to
hear a criminal charge—it merely invokes that jurisdiction. The charging document does
not need to include all the essential elements of a charged offense and is now deemed
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sufficient if it alleges facts which, if proven beyond a reasonable doubt, show the
defendant has committed a crime in Kansas. 304 Kan. at 811.
Pollman appeared in the district court in 2011 to respond to three charges stated in
his complaint/information: intentionally discharging a firearm at an occupied motor
vehicle in violation of K.S.A. 21-4219(b); felony criminal damage to property $1,000 to
less than $25,000; and misdemeanor criminal damage to property. Each count alleged a
crime in Kansas, under either an elements test or a facts test. By filing this
complaint/information in 2011, the State properly invoked the jurisdiction of the district
court. Pollman did not then, nor does he now, question the jurisdiction of the district
court over any charge in the complaint. He questions only the jurisdiction over the
nonexistent offense to which he subsequently pleaded.
But when Pollman struck his plea bargain with the State, he did so knowing of all
the crimes charged. These charges, over which the district court clearly had jurisdiction
and which were unquestionably viable under the Kansas Criminal Code, were as much a
part of the plea negotiations as was the offense to which Pollman actually pleaded.
Moreover, as a result of the plea entered by Pollman, the State dismissed the remaining
charges. So "the focus of the [district] [c]ourt's jurisdiction here cannot be limited to the
validity of the [nonexistent] charge but must include the adjudication through the plea
bargaining process of all charges pending against the defendant." Downer v. State, 543
A.2d 309, 312 (Del. 1988). Pollman has shown no authority for his argument that the
district court somehow had jurisdiction to take his plea, dismiss the valid charges, and
sentence him, yet it simultaneously lacked jurisdiction to convict him of the nonexistent
offense to which he agreed.
Pollman cites Dunn, 304 Kan. at 787, for its reliance on United States v. Peter,
310 F.3d 709, 714-15 (11th Cir. 2002). Peter held that where an indictment failed to
allege conduct that would constitute a federal crime, the district court lacked jurisdiction
16
to accept the resulting plea. But Peter applied "the rule of Meacham, that a district court
lacks jurisdiction when an indictment alleges only a non-offense." (Emphasis added.) 310
F.3d at 715; see United States v. St. Hubert, 909 F.3d 335, 343 (11th Cir. 2018) (stating
the Peter court decided that when an indictment alleges only a nonoffense "the district
court has no jurisdiction to accept the guilty plea"). In contrast, Pollman's charging
document did not allege only nonoffenses.
Dunn said nothing different:
"'[T]here is no jurisdictional defect when the "indictment fail[s] to allege an element of
the charged offense," but there is one when the indictment affirmatively alleges conduct
that does not constitute a crime at all because that conduct falls outside the sweep of the
charging statute.' 752 F.3d at 1352 (quoting Peter, 310 F.3d at 714)." 304 Kan. at 787.
We agree. As Dunn confirms, had the State initially presented the district court
with a complaint/information that did not charge any crime, the charging document
would not have invoked the district court's jurisdiction. See K.S.A. 2010 Supp. 22-3502
(arrest of judgment available if charging document does not charge crime or court
without jurisdiction); Spencer, 24 Kan. App. 2d at 128-29. But that is not what happened
here. Pollman's 2011 charging document did not allege any nonoffense but instead
alleged only crimes defined by the Kansas Legislature.
No jurisdictional problem is created when, as here, the charging document alleges
conduct that constitutes a crime, then the defendant later chooses to beneficially plea to a
nonexistent offense. Spencer, 24 Kan. App. 2d at 129 (finding district court had
jurisdiction to accept Spencer's guilty plea to a nonexistent crime because Spencer was
originally charged with a valid crime). "[T]he court's jurisdiction is not lost simply
because the result of the bargaining is a plea to a nonexistent offense." Downer, 543 A.2d
17
at 312. The fundamental authority of the court to accept the result of Pollman's bargain
with the State remained intact.
Because the State was not legally precluded from obtaining a valid conviction
based on one of the originally charged offenses, the district court had jurisdiction over all
charges pending against Pollman, including the related charges disposed of through his
guilty plea.
3. Pollman received a beneficial plea agreement.
Pollman does not contend that his plea agreement was not beneficial. In fact, he
appears to recognize the benefit of his bargain, as he has not moved to withdraw his plea
or reverse his conviction. At the time of the plea, Pollman was charged with one count of
intentionally discharging a firearm at an occupied motor vehicle, in violation of K.S.A.
21-4219(b), a severity level 7 person felony; one count of criminal damage to property of
$1,000 to less than $25,000, a severity level 9 nonperson felony; and one count of
criminal damage to property less than $1,000, a class B nonperson misdemeanor. By
Pollman's plea, the district court classified the reduced charge of discharging a firearm at
an unoccupied vehicle as a severity level 8 felony. It removed the State's opportunity to
prove a level 7 felony and dismissed the severity level 9 felony and the class B
misdemeanor. By taking the plea to the nonexistent offense, Pollman reduced his
sentence to 10 months. The record confirms that Pollman received a beneficial plea
agreement.
4. Pollman voluntarily and knowingly entered into the plea agreement.
Pollman does not challenge the knowing and voluntary nature of his plea.
Although the record contains no transcript from the 2011 plea hearing, it does include the
journal entry of the arraignment/plea hearing, which includes a summary of the parties'
18
agreement. That summary evidences a thorough colloquy between the court and Pollman
about Pollman's rights, what he understood, and what he was waiving—this complied
with procedural due process. See State v. Moody, 282 Kan. 181, 194, 144 P.3d 612
(2006) (noting K.S.A. 2005 Supp. 22-3210 embodies due process requirements
articulated in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 [1969]).
The journal entry of the plea hearing strongly implies that Pollman was informed
that the amended charge constituted a severity level 8 felony. The journal entry indicates
that Pollman was advised of the charges and possible penalties. He was advised of the
right to a preliminary examination hearing and that the purpose of such hearing was to
determine whether a felony had been committed and whether there was probable cause to
believe he committed the felony. Pollman was given a copy of the amended complaint,
which presumably designated the amended charge as a severity level 8 person felony.
Before accepting the plea, the district court informed Pollman of his rights,
including his rights to a jury trial; to have an attorney represent him at every stage of the
proceeding; to confront and cross-examine the State's witnesses; to present witnesses of
his own and compel their attendance if necessary; to testify if he desired; and to expect
that the State will have to carry its burden of proof beyond a reasonable doubt. Pollman
indicated that he understood those rights and had consulted with his attorney about them.
The district court then questioned the defendant about his plea. Pollman stated that
he understood the terms of the bargain; had adequate time to discuss the bargain with his
attorney and any questions had been answered; had in no way been forced, coerced, or
threatened to take the bargain; saw benefit from the bargain; understood that he was
giving up his right to trial and most of the rights of appeal; understood that the court was
not bound by the bargain or recommendations as to sentencing, leniency, probation, or
parole; and had not been promised that the court would be lenient or grant probation or
parole. The district court then found that the plea bargain was knowingly and voluntarily
19
entered into by the defendant. The record thus confirms that Pollman's plea was knowing
and voluntary.
Pollman is permitted to plead to a nonexistent crime as part of a plea agreement
because he was initially brought into court on a valid pleading, he received a beneficial
plea agreement, and he voluntarily and knowingly entered into the plea agreement. See
Spencer, 24 Kan. App. 2d at 129. Because Pollman entered into a beneficial plea
agreement voluntarily and intelligently, he forfeited the right to collaterally attack any
underlying infirmity in the charge to which he pled. See McPherson, 38 Kan. App. 2d
276, Syl. ¶ 3. His conviction for discharging a firearm at an unoccupied vehicle stands.
WAS POLLMAN'S NONEXISTENT OFFENSE PROPERLY SCORED FOR PURPOSES OF
CRIMINAL HISTORY?
We next determine how to score a nonexistent offense for purposes of criminal
history. We look to the Kansas sentencing guidelines.
Pollman argues that the sentence for his 2017 conviction failed to conform to
statute, specifically in the classification of his criminal history.
The legality of a sentence under the Kansas Sentencing Guidelines Act involves
statutory interpretation, which constitutes a question of law subject to plenary appellate
review. See State v. Clapp, 308 Kan. 976, 980, 425 P.3d 605 (2018); State v. Redick, 307
Kan. 797, 807, 414 P.3d 1207 (2018). A felony sentence under the Kansas Sentencing
Guidelines Act is calculated by properly classifying the severity level of the crime and
the defendant's criminal history score. State v. Lee, 306 Kan. 624, 625, 395 P.3d 418
(2017).
20
A. The general rule requires all convictions to be counted.
We begin with the general rule, set forth in K.S.A. 2016 Supp. 21-6810(c), that
"[e]xcept as otherwise provided, all convictions, whether sentenced consecutively or
concurrently, shall be counted separately in the offender's criminal history." As the above
discussion concludes, Pollman's 2011 conviction should be counted in his criminal
history.
B. Pollman's 2011 conviction is not among the exclusive statutory exceptions.
The statute lists in K.S.A. 2016 Supp. 21-6810(d) the possible exceptions to the
general rule that all convictions count. For example, subsection (d)(8) provides that
convictions under a statute later deemed to be unconstitutional are not scored in criminal
history; subsection (d)(9) provides that convictions under a subsequently repealed statute
are scored in criminal history. None of the exceptions provided in K.S.A. 2016 Supp. 21-
6810(d) excludes a nonexistent crime from calculation in an offender's criminal history,
or otherwise excludes Pollman's 2011 conviction. The statute underscores the general
rule by reciting it again after the possible list of exclusions, stating "[e]xcept as otherwise
provided, all other prior convictions will be considered and scored." K.S.A. 2016 Supp.
21-6810(d)(9). The Legislature's intent could not be clearer. These statutory exceptions
are exclusive. The KSGA requires us to count in one's criminal history any conviction not
excepted by statute. Pollman's conviction was not excepted by statute, so it must be
counted.
1. Pollman's 2011 conviction was a verified conviction.
K.S.A. 2016 Supp. 21-6810(d)(1) states: "Only verified convictions will be
considered and scored." If a conviction is verified and is not excluded by exceptions to
the general rule, we must count it in a defendant's criminal history. Conversely, if a
21
conviction is not verified, it cannot be counted. This statute reflects legislative intent that
we do not look beyond the fact of verification when determining the validity of a
conviction for purposes of criminal history. That rule has much to commend it.
A verified conviction is a conviction reflected in a journal entry or similar official
court documents. See K.S.A. 2016 Supp. 21-6813(b)(5) (stating that convictions may be
verified through "journal entries or other documents"); State v. Schow, 287 Kan. 529,
536, 197 P.3d 825 (2008); United States v. Allen, No. 99-4024, 1999 WL 672312 (10th
Cir. 1999) (unpublished opinion) (finding the district court erred by relying on the
presentence report's listing of an unverified conviction which stated that "'court and
police information have been requested but not received'"); cf. State v. Prater, 31 Kan.
App. 2d 388, 392-94, 65 P.3d 1048 (2003) (finding the district court properly included
attempted aggravated arson in Prater's criminal history score even though he had not yet
been formally convicted of that charge by the district court after remand by the Kansas
Court of Appeals, because the appellate court's mandate ordering the district court to
enter a conviction of that crime had the effect of a verified conviction).
Pollman's 2011 conviction for discharge of a firearm at an unoccupied vehicle is
reflected in his 2011 journal entry, which also reflects the dismissal of two counts of
criminal damage to property. The district court categorized Pollman's criminal discharge
offense as a severity level 8 person felony, ordered restitution in the amount of $4,278.72,
and imposed a 10-month sentence for Pollman's agreed offense. Because his conviction
for the nonexistent offense is included in the journal entry, it is a verified conviction.
Verified convictions are to be considered and scored. See K.S.A. 2016 Supp. 21-
6810(d)(1). This subsection, independently of Spencer and its line of cases, requires us to
count Pollman's conviction in his criminal history.
22
2. Pollman's 2011 conviction was an unclassified felony.
In Kansas, crimes are designated felony or misdemeanor (or traffic or cigarette or
tobacco infractions) and person or nonperson by the state Legislature. See K.S.A. 2016
Supp. 21-5102. By the nature of the penalty imposed, the nonexistent offense to which
Pollman pleaded in 2011 was a felony and should be classified as such for criminal
history purposes.
"(a) A felony is a crime punishable by death or by imprisonment in any state
correctional institution or a crime which is defined as a felony by law.
....
"(d) All other crimes are misdemeanors." K.S.A. 2016 Supp. 21-5102.
The district court imposed an underlying sentence on Pollman for discharge of a firearm
at an unoccupied vehicle of 10 months in the custody of the Kansas Department of
Corrections. Even though the offense was not classified by statute, the nature of its
punishment, which Pollman does not challenge, classified it as a felony.
The relevant statute requires courts to consider and score unclassified felonies as
nonperson crimes. K.S.A. 2016 Supp. 21-6810(d)(6) states: "Unless otherwise provided
by law, unclassified felonies and misdemeanors, shall be considered and scored as
nonperson crimes for the purpose of determining criminal history." Pollman's conviction
was unclassified so it should have been scored as a nonperson crime.
Consistent with K.S.A. 2016 Supp. 21-6810(d)'s statutory mandate, K.S.A. 2016
Supp. 21-6807(c) provides the following rules for determining the crime severity of
specified offenses.
"(c) The provisions of this subsection shall be applicable with regard to ranking
offenses according to the crime severity scale as provided in this section:
23
"(1) When considering an unranked offense in relation to the crime severity
scale, the sentencing judge should refer to comparable offenses on the crime severity
scale.
"(2) Except for off-grid felony crimes, which are classified as person felonies, all
felony crimes omitted from the crime severity scale shall be considered nonperson
felonies.
"(3) All unclassified felonies shall be scored as level 10 nonperson crimes."
K.S.A. 2016 Supp. 21-6807(c).
The legal distinction between an "unranked" felony and an "unclassified" felony is
not readily apparent in the statute, and the terms have not been defined by statute or
caselaw. But for purposes of this appeal, it is unnecessary to determine whether Pollman's
conviction was also "omitted" or "unranked" because application of any one of the three
rules in K.S.A. 2016 Supp. 21-6807(c)(1), (2), or (3) results in the same criminal history
rating for Pollman's 2011 conviction. We examine these below.
Under K.S.A. 2016 Supp. 21-6807(c)(1), a sentencing judge considering an
unranked offense in relation to the crime severity scale, "should refer to comparable
offenses on the crime severity scale." If we consider Pollman's 2011 offense to be an
"unranked offense," as it appears to be, his offense of discharging a firearm at an
unoccupied vehicle is comparable to criminal damage to property. Criminal damage to
property in the amount of $1,000 to less than $25,000 was a severity level 9 nonperson
felony at the time Pollman committed the offense. K.S.A. 21-3720(b)(2). Pollman was
charged restitution in the amount of $4,278.72. Five-hundred dollars of that restitution is
payable to a person listed as the victim of one of the dismissed criminal damage to
property charges. The remaining $3,778.72 then necessarily pertains to the offense of
conviction. Thus under K.S.A. 2016 Supp. 21-6807(c)(1), Pollman's 2011 conviction
should be classified as a nonperson felony for criminal history purposes.
24
Under K.S.A. 2016 Supp. 21-6807(c)(2), Pollman's 2011 offense was a "felony
crime[] omitted from the crime severity scale" so it "shall be considered [a] nonperson
felon[y]." Similarly, under subsection (c)(3), Pollman's 2011 offense would be classified
as a nonperson felony because "[a]ll unclassified felonies shall be scored as level 10
nonperson crimes." K.S.A. 2016 Supp. 21-6807(c)(3). Pollman's brief admits that his
2011 offense is "unclassified" and defines that term as "'not placed or belonging in a
class'" (quoting Webster's New Collegiate Dictionary 1263). Pollman states "[b]y its
plain language then, an unclassified crime would be any crime not otherwise placed
within a class. Because [] Pollman's prior conviction was for a nonexistent crime, which
had no classification, it is unclassified." We agree.
Consequently, the district court erroneously classified Pollman's 2011 conviction
as a person felony in determining his criminal history score in the present case. When the
2011 conviction is properly classified as a nonperson felony, Pollman's criminal history
score should have been determined to be an E.
C. The rule of lenity does not apply.
Pollman's only other argument is that the rule of lenity applies. That rule requires a
court to apply a reasonable reading of a statute in favor of a criminal defendant when the
applicable language of a statute or statutes fosters a genuine ambiguity. State v. Coman,
294 Kan. 84, Syl. ¶ 5, 273 P.3d 701 (2012) ("Under the rule of lenity, criminal statutes
must be strictly construed in favor of the defendant."); State v. Thompson, 287 Kan. 238,
249, 200 P.3d 22 (2009) (statutory silence or ambiguity construed in favor of defendant).
Although the Legislature had not classified the offense for which Pollman was convicted
in 2011, the criminal code is not silent or ambiguous as to classification of that offense. It
instead guides us on how to classify unclassified, omitted, or unranked convictions, such
as Pollman's. As a result, the rule of lenity does not apply.
25
CONCLUSION
Pollman's 2011 offense must be scored as a nonperson felony rather than as a
person felony. We vacate Pollman's sentence and remand for resentencing.
***
ATCHESON, J., dissenting: The majority today unleashes a bastard beast of plea
bargaining that permits a prosecutor and defense lawyer to agree to a crime they make up,
then designate as a felony or misdemeanor, and arbitrarily assign a severity level—as
long as a district court consents. The beast, effectively a common-law crime, defies legal
bounds: It is contrary to the Kansas Criminal Code; it ignores controlling Kansas
Supreme Court precedent; and it almost certainly violates the Kansas Constitution's
separation of powers between the judicial and legislative branches of government.
Ironically, this case could be decided one way or the other without the beast. Given my
disagreement with both the result the majority reaches and the misbegotten way it goes
about getting to that result, I dissent.
In 2011, Defendant Robert Kenton Pollman Jr. entered into an agreement to plead
no contest to "crim[inal] discharge [of a] firearm at [an] unoccupied vehicle." No such
offense appeared in the Kansas Criminal Code then and doesn't now. As part of the
charade, Pollman's lawyer and the county attorney designated their invented crime as a
severity level 8 person felony. For reasons I can't fathom, the Finney County District
Court accepted the plea, thereby creating a common-law crime—one that exists by
judicial declaration rather than legislative enactment. The district court later sentenced
Pollman consistent with the plea agreement, and he has completed that sentence as far as
we know.
26
Six years later, Pollman pleaded no contest to a drug crime (that does appear in the
criminal code). And that is the case in front of us. For his only issue on appeal, Pollman
has challenged how his 2011 conviction on the common-law offense of shooting at an
unoccupied vehicle should be scored for criminal history purposes. And that is the
question in front of us. Pollman is not trying to set aside the 2011 conviction. I am not
sure he has a procedural vehicle to do so, even if he wanted to. But I am quite sure this
case would not be it.
PLEA BARGAINING DOES NOT EXTEND TO COMMON-LAW CRIMES
It seems plain to me that Pollman could not have been and should not have been
convicted of a common-law crime in 2011. In short, the district court had no business
accepting a plea to an entirely made-up crime. The Kansas Criminal Code explicitly
abolishes common-law crimes: "No conduct constitutes a crime against the state of
Kansas unless it is made criminal in this code or in another statute of this state . . . ."
K.S.A. 2016 Supp. 21-5103(a). The prohibition governed Pollman's 2011 case and has
been in place for eons. See K.S.A. 21-3102; State v. Young, 55 Kan. 349, 356, 40 P. 659
(1895). The legislative intent couldn't be much clearer. If conduct doesn't correspond to
what is described in a section of the criminal code or elsewhere in the statute books, it
isn't a crime. The district court violated that statutory directive in accepting Pollman's
plea in 2011.
The Kansas Supreme Court has repeatedly recognized that "[t]here are no common
law crimes in this state, and there can be no conviction except for such crimes as are
defined by statute." State v. Sexton, 232 Kan. 539, Syl. ¶ 1, 657 P.2d 43 (1983); see State
v. Rodriguez, 305 Kan. 1139, 1154, 390 P.3d 903 (2017) (recognizing rule stated in
Sexton); Young, 55 Kan. at 356. That precedent is binding on district courts. So the
district court should not have accepted Pollman's plea to a common-law crime in 2011 for
that reason.
27
Finally, the Kansas Constitution allocates authority among the executive,
legislative, and judicial branches of government. See State ex rel. Morrison v. Sebelius,
285 Kan. 875, 882-83, 179 P.3d 366 (2008) (recognizing separation of powers doctrine as
"'inherent and integral'" to the fundamental tripartite forms of state and federal
government and implicit in the division of authority among the legislative, executive, and
judicial branches recognized in Kansas Constitution). With the abolition of common-law
crimes, the judicial branch had no authority to proscribe particular conduct as criminal.
That authority rests with the Legislature. As the Rodriguez court recently pointed out, "it
is the Kansas Legislature that establishes what constitutes a criminal act in Kansas, not
the courts." 305 Kan. at 1154. The concept is neither new nor stunning. See Sexton, 232
Kan. at 542 ("[A]ll crimes are established by legislative act."). By endorsing the 2011
plea bargain, the district court gave its imprimatur to a common-law crime and, in doing
so, exceeded its constitutional authority by usurping a legislative function. See State ex
rel. Morrison, 285 Kan. at 898 ("The separation of powers doctrine, therefore, prohibits
either the executive or judicial branches from assuming the role of the legislature.").
To reiterate, the district court should not have accepted Pollman's plea to a
common-law crime in 2011 and had an obligation to reject the proposed agreement. If
there were some need to invoke a particular rule for the result, it would be this:
Plea agreements are treated as a species of contract. State v. Peterson, 296 Kan.
563, 567, 293 P.3d 730 (2013). The courts should not enforce contracts that are contrary
to public policy. Varney Business Services, Inc. v. Pottroff, 275 Kan. 20, Syl. ¶ 11, 59
P.3d 1003 (2002). Public policy may be found in legislative enactments or constitutional
doctrines. Petty v. City of El Dorado, 270 Kan. 847, 854, 19 P.3d 167 (2001) (public
policy of state resides in "its constitution, its statutory enactments, and its judicial
decisions"). The declaration of public policy in criminalizing particular conduct resides
with the Legislature, subject to constitutional strictures.[1]
28
[1]We do not know why the district court accepted the plea in the 2011 case. The
transcripts from the plea hearing and sentencing in that case are not in the record on
appeal for this case. We have a journal entry of disposition, reflecting the entry of the
plea. I presume at some point in the process the district court understood that discharging
a firearm at an unoccupied vehicle was not criminalized in a Kansas statute. Whether the
district court knew or didn't know, the plea was legally improper.
As I said, the question for us is how the 2011 conviction should be treated for
criminal history purposes in this case. To resolve that issue, the majority arguably does
not need to endorse the plea agreement and conviction as proper exercises of authority
and could simply find that Pollman cannot now disavow the result he sought in that case.
As I next explain, I disagree with even that sort of narrow conclusion. But I am more
adamantly at odds with the majority's broad—and wholly unjustified—endorsement of
plea agreements and convictions for common-law crimes. The beast arises from fallacies
in the majority's treatment of plea bargaining and its muddled application of reasoning by
analogy, a mainstay of judicial decision-making.
Because plea agreements for and convictions of common-law crimes are
impermissible, they should not happen. A published decision to that effect from the
Kansas Supreme Court at least in theory should slay the beast and end the practice. See
State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014) (Court of Appeals duty bound to
follow Supreme Court precedent); State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d
467 (2015) (same); State v. Stadler, No. 112,173, 2015 WL 4487059, at *6 (Kan. App.
2015) (unpublished opinion) ("The district court and this court are duty bound to follow
Kansas Supreme Court precedent."). Until now, the court has not been called upon to
address the precise issue, although the conclusion seems ineluctable for the reasons I
have outlined. But precedent and the force of stare decisis create no more than an honor
system in this circumstance. If the lawyers for the parties and the district court agree to a
disposition of a case based on a plea to a common-law crime, no one has an incentive to
complain and, thus, to appeal the result.[2]
29
[2]We have no particularly reliable gauge as to how common the practice may be.
Pollman's 2011 case could be an isolated, and perhaps unique, instance of unwarranted
creativity. But plea bargaining to common-law crimes may have been a recurrent
phenomenon in some judicial districts or even across the state that has gone largely
unnoticed in the absence of any appellate review. With today's published opinion, the
practice almost certainly will become more common.
Appellate courts may impose transactional costs on improper practices to
disincentivize them. For example, the Kansas Supreme Court requires the party
benefiting from an erroneous jury instruction to demonstrate the absence of prejudice to
an opposing party who has objected. See Castleberry v. DeBrot, 308 Kan. 791, 809, 424
P.3d 495 (2018). Similarly, the court imposes on the State the burden of proving a
prosecutor's impermissible closing argument did not prejudice the defendant. See State v.
Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). Plea bargaining for and resulting
convictions based on common-law crimes represents another improper practice.
But there is no disincentive to improper plea bargaining that may be reliably
imposed in the case in which it occurs precisely because everyone agrees to the
impropriety. The appellate courts, therefore, have to exact some other transactional cost.
Declining to consider such a conviction for criminal history purposes in a later criminal
prosecution creates at least a modest penalty and ought to discourage plea bargains for
common-law crimes. The cost, of course, falls on the State rather than the criminal
defendant. But there can be no plea agreement without the State's approval. And the
prosecution's ultimate duty is to advance a just result—a duty that can't really be squared
with signing off on a plea agreement that violates public policy even though the
agreement may confer some benefit on the defendant. See State v. Pabst, 268 Kan. 501,
510, 996 P.2d 321 (2000) (prosecutorial duty). The district court's approval of such an
agreement—at the behest of the prosecutor and the defendant—neither sanctifies nor
sanitizes the result.
30
For that reason, I conclude Pollman's 2011 conviction should not be scored for
criminal history purposes in this case because it derives from an impermissible plea
agreement and rests on an unsanctioned common-law crime. I, therefore, would reverse
and remand with directions that the district court resentence Pollman in this case using a
criminal history category that excludes the 2011 conviction.[3]
[3]The change would be significant for Pollman in this case, and it would be for
most defendants if the discarded conviction for a common-law crime had been dubbed a
person felony. In this case, the district court placed Pollman in criminal history category
C based on one person felony conviction (the 2011 case) and one nonperson felony.
Based on the conviction in this case for attempted possession of methamphetamine,
Pollman fell in a border box with a presumptive guidelines sentence of 28 to 32 months
in prison. A border box effectively calls for presumptive incarceration. See K.S.A. 2016
Supp. 21-6805(d). If the 2011 conviction were discarded, Pollman would have been in
criminal history category F based on two nonperson felonies with a guidelines sentence
of 16 to 18 months incarceration and a presumption for probation.
MAJORITY ERRS IN RECOGNIZING PLEAS TO COMMON-LAW CRIMES
The majority mistakenly concludes a plea agreement for and conviction of a
common-law crime must be legally permissible based on two pyramiding errors. First,
the majority misunderstands the scope of the legal fictions tolerated in plea bargaining.
Pertinent here, those fictions are limited to convictions for statutorily recognized crimes,
consistent with K.S.A. 2016 Supp. 21-5103(a). With statutory crimes, the Legislature
proscribes the wrongful conduct, designates the crime as a felony or misdemeanor, and
prescribes the presumptive sentence in keeping with the recognized allocation of
authority between the legislative and judicial branches. Second, the majority extracts the
narrow statement of the holdings in cases affirming pleas to statutory crimes and then,
without considering the governing factual circumstances, applies those holdings here to a
plea involving a common-law crime—a legally significant and, in my view, controlling
difference. That severance of factual predicate from legal holding conflicts with
appropriate judicial reasoning by analogy from case precedent to new and different
31
circumstances. Doing so may create false analogies and can easily lead to erroneous
outcomes, as has happened here. Finally, however, the majority essentially contradicts its
own premise by treating Pollman's 2011 conviction as a nonperson felony more or less in
keeping with the statutory framework rather than as a person felony consistent with the
parties' and the district court's designation of their invented crime.
Plea Bargaining in Kansas Does Not Contemplate Common-Law Crimes
The criminal justice system depends on plea bargaining as a means of disposing of
the vast majority of cases. Without those agreements and the resulting dispositions, the
system would collapse from the sheer volume of trials and the time and resources they
would consume. Plea bargains typically call for a defendant to plead guilty or no contest
in exchange for the State agreeing to a reduction of the charged crimes to less serious
crimes, the dismissal of some charged crimes, a recommendation to the district court for
less than the maximum sentence, or some combination of those benefits.
Successful plea bargains often depend upon one or more legal fictions to arrive at
deals mutually acceptable to the prosecution and the defense and tolerable to district
courts. Legal fictions are strange creatures. They populate the law with conventions or
understandings that aren't really true but are accepted because they smooth out processes
that would otherwise be at least cumbersome and perhaps unworkable. A legal fiction has
been defined as "[a]n assumption that something is true even though it may be untrue . . .
to alter how a legal rule operates." Black's Law Dictionary 1031 (10th ed. 2014).
Plea bargaining regularly relies on three legal fictions. In the first fiction, the
prosecutor and the defendant agree to a plea to an amended statutory crime that doesn't
particularly fit the facts of what the State contends actually happened but carries a lesser
punishment than the original charge. See, e.g., State v. Wieland, No. 114,900, 2017 WL
657999, at *3 (Kan. App.) (unpublished opinion) (defendant pleaded guilty to two counts
32
of attempting to possess child pornography, a form of sexual exploitation of a child
violating K.S.A. 2012 Supp. 21-5510[a][2], when he actually had child pornography on
his smartphone), rev. denied 306 Kan. 1331 (2017). The second fiction comes into play
when the defendant pleads guilty to a lesser offense that amounts to a legal
impossibility—typically an attempt to commit certain statutory crimes. The particular
mental intent required for attempts cannot exist simultaneously with the particular mental
state or mens rea for some crimes. That conflict prevents a defendant from truly having
the state of mind necessary to be guilty of an attempt to commit those crimes, rendering
such a charge a "legal impossibility." See, e.g., McPherson v. State, 38 Kan. App. 2d 276,
280, 163 P.3d 1257 (2007) (defendant properly permitted to plead to attempted
unintentional second-degree murder even though crime requires mental state that cannot
legally exist). Attempts typically are punished less severely than the completed crimes, so
the defendant realizes a benefit. See K.S.A. 2018 Supp. 21-5301(c)(1). In the third
fiction, a defendant pleads guilty to a statutory crime to accept an advantageous plea
bargain while maintaining his or her innocence in what is commonly known as an Alford
plea. See State v. Case, 289 Kan. 457, 460-61, 213 P.3d 429 (2009); see also North
Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Although those conventions may be legal fictions, the fiction extends only so far.
They all involve dispositions resulting in convictions for statutory crimes. In other words,
the crime to which the defendant pleads can be found in the Kansas Criminal Code or
elsewhere in the statute books. Attempts are codified, as are aiding and abetting and
criminal conspiracies. See K.S.A. 2018 Supp. 21-5210 (liability for aiding and abetting
another in committing a crime); K.S.A. 2018 Supp. 21-5301 (liability for failed attempt
to commit crime); K.S.A. 2018 Supp. 21-5302 (liability for agreement with another
person to commit crime coupled with overt act in furtherance of agreement). So the pleas
tie directly to what the Legislature has chosen to criminalize. In turn, the Legislature has
designated the crimes of conviction as misdemeanors or felonies, their severity level, and
their identification as person or nonperson offenses. None of that is supposed to be left to
33
the parties' invention. And all of those classifications matter. The severity level of a
felony in combination with the defendant's criminal history category determines the
presumptive guidelines sentence for a conviction. A defendant's criminal history, in turn,
takes account of past convictions with greater weight given to felonies than
misdemeanors and to person offenses over nonperson offenses.
Pollman's 2011 conviction has none of those attributes, since the prosecutor and
the defense lawyer invented the crime of discharging a firearm at an unoccupied vehicle.
There is no such offense in the Kansas Criminal Code. The lawyers arbitrarily
characterized their invention as a felony and with equal arbitrariness and a dose of illogic
designated it a severity level 8 person felony. Just how shooting at a vehicle with no
occupants ought to be a person felony escapes me. See Kansas Sentencing Guidelines
Desk Reference Manual 28 (2018 ed.) ("The 'person' designation generally refers to
crimes that inflict, or could inflict harm to another person."). The Legislature, of course,
had nothing to say about any of that. Neither the district courts nor the appellate courts
ought to sign off on those legislatively unauthorized creations.
The majority pallidly points out that discharging a firearm at an unoccupied
vehicle sounds kind of like some actual statutory crimes, such as discharging a firearm at
an occupied vehicle—the charge the prosecutor originally filed against Pollman in
2011—or discharging a firearm at an unoccupied dwelling. See K.S.A. 21-4219 (now
codified as K.S.A. 2018 Supp. 21-6308). Or criminal damage to property. See K.S.A.
2018 Supp. 21-5813. Or (maybe) discharging a firearm on the land of another without
permission or from a public road or right-of-way. See K.S.A. 2018 Supp. 21-6308. While
the similarity may be interesting, it does nothing to legitimize an otherwise illegitimate
common-law crime. Sexton, 232 Kan. at 543 ("[A] criminal statute will not be 'extended
by courts to embrace acts or conduct not clearly included within its prohibitions.'")
(quoting State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 [1978]).[4]
34
[4]I remain puzzled by why the prosecutor and defense lawyer handling Pollman's
2011 case felt the need to venture into the realm of common-law crimes to work out a
disposition of the original offense of discharge of a firearm at an occupied vehicle, a
severity level 7 person felony violation of K.S.A. 21-4219(b). Neither of those lawyers
has been involved in this case, so we haven't had the opportunity to ask them. A plea
bargain to the statutory crime of attempted discharge of a firearm would have been a
severity level 9 person felony. See K.S.A. 2010 Supp. 21-3301. It would have had a
slightly shorter presumptive guidelines sentence (7 to 9 months) than the invented
common-law crime (9 to 11 months) based on Pollman's criminal history in 2011.
The extraordinary rule the majority propounds today limits plea bargaining only
by the imagination of prosecutors, defense lawyers, and compliant district courts. We can
and should anticipate convictions for strange crimes. For example, a prosecutor with a
witness problem in a robbery might plead the defendant to felony jaywalking as a
severity level 8 nonperson offense. Jaywalking actually is a traffic infraction, but in no
circumstance could it be a felony. See K.S.A. 8-1534(d); K.S.A. 2018 Supp. 8-2118(c).
In another problem case, that prosecutor could reduce a severity level 4 aggravated
battery to "excessive force self-defense"—a severity level 9 person felony entailing the
common-law crime of using more nonlethal force than necessary in circumstances
permitting self-defense. In some other judicial district, excessive force self-defense could
be a severity level 7 person felony. Maybe it turns into a misdemeanor in yet another
judicial district.
Prosecutors, of course, have tremendous discretion in their charging decisions and
can engineer plea agreements to reduced statutory charges that differ markedly from what
they originally file against a defendant with concomitant variances in punishment and
implications for criminal history determinations. But those pleas conform to the
legislative blueprint of what constitutes criminal conduct. Pleas to invented common-law
crimes fall outside that blueprint and lack statutory and constitutional legitimacy. Any
sense of consistency gets lost fast in a world of common-law crimes.
35
The majority doesn't really consider how a conviction for a common-law crime
ought to be treated for various collateral purposes apart from scoring criminal histories.
For example, a common-law felony involving some sort of sexual assault—say,
defilement of a minor—might not require a defendant to comply with the Kansas
Offender Registration Act, K.S.A. 22-4901 et seq. The crimes triggering registration and
reporting obligations are for the most part keyed to specific statutory offenses. See
K.S.A. 2018 Supp. 22-4902(c). The catch-all provisions likely wouldn't apply. K.S.A.
2018 Supp. 22-4902(c)(16), (c)(18). Under K.S.A. 2018 Supp. 22-4902(c)(16), the
defendant must have been convicted of "an offense . . . comparable to" one of the
designated statutory crimes. The Legislature presumably intended to reach similar
convictions from other jurisdictions rather than a conviction for a common-law crime in a
Kansas court—something it sought to abolish by eliminating common-law crimes. The
other catch-all in K.S.A. 2018 Supp. 22-4902(c)(18) requires a determination beyond a
reasonable doubt that a particular act was "sexually motivated[,]" meaning "the defendant
committed the crime" for his or her sexual gratification. The subsection presupposes the
commission of a crime, a reference reasonably confined to what the Legislature itself has
criminalized.
Pollman's 2011 conviction might have required him to register as a violent
offender. See K.S.A. 2011 Supp. 22-4902(e)(2) (registration required for person felony
conviction on or after July 1, 2006, if district court makes finding deadly weapon used).
The record is unclear whether the district court considered or imposed KORA
registration. A firearm fairly would be considered a deadly weapon. See Black's Law
Dictionary 1827 (10th ed. 2014) (term "deadly weapon" includes "[a]ny firearm or other
device . . . [that] is calculated or likely to produce death"). The majority's conclusion
today muddies the issue, since it says the 2011 common-law conviction should be treated
as a nonperson felony for criminal history purposes—a peculiar twist I discuss later. But
how it is scored as part of a criminal history wouldn't necessarily alter the underlying
conviction itself as a person felony, since that's what the parties invented and the district
36
court approved, assuming (as the majority holds) they could walk into the world of
common-law crimes at all.
Similar uncertainty pervades how a conviction for a common-law crime invented
as a felony ought to be treated for purposes of civil disabilities, such as the prohibitions
on voting and holding public office, see K.S.A. 2018 Supp. 21-6613, and, perhaps of
lesser importance, for purposes of expungement, see K.S.A. 2018 Supp. 21-6614. The
Legislature has also determined that persons convicted of felonies may be denied licenses
to work in various occupations. See, e.g., K.S.A. 2018 Supp. 2-2449(a) (pest control
services); K.S.A. 2018 Supp. 47-830(e) (veterinary medicine); K.S.A. 65-1820a(a)(12)
(barbering based on person felony); K.S.A. 65-6615(a)(2) (drug or alcohol addiction
counselor). The Legislature presumably has made a studied determination of the
occupations that ought to be closed to felons as a matter of public policy and has no
intention of delegating the authority to identify the crimes triggering that detriment to
prosecutors, defense lawyers, and district court judges manufacturing common-law
offenses.
I weigh all of those considerations strongly against the idea the Legislature
intended to permit plea bargaining to anything other than statutory crimes.
Majority Misapplies Judicial Reasoning by Analogy
In recognizing plea bargains and resulting convictions for common-law crimes,
the majority relies on cases involving statutory crimes and misapplies their holdings by
failing to recognize that factual circumstance as integral to those holdings. What the
majority has done short-circuits judicial reasoning by analogy from case precedent to new
situations that are materially different. The majority fails to acknowledge, let alone
account for, the striking difference between statutory crimes and common-law crimes
and, thus, constructs a false analogy to reach an erroneous result.
37
The majority relies heavily on the McPherson decision and the comparable
holding in Spencer v. State, 24 Kan. App. 2d 125, 942 P.2d 646 (1997), aff'd on other
grounds 264 Kan. 4, 954 P.2d 1088 (1998). So I start there to illustrate the problem with
the majority's reasoning. McPherson filed a motion under K.S.A. 60-1507 attacking his
earlier plea to attempted unintentional second-degree murder on the grounds no such
crime actually could be committed. When McPherson entered his plea an attempt
required the defendant to have the specific intent to commit the underlying crime. But
that form of second-degree murder entailed an unintentional killing. The Kansas Supreme
Court had held in State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995), that a
person could not form the specific mental intent to commit an unintentional killing, so the
crime of attempted unintentional second-degree murder amounted to a legal
impossibility. McPherson argued in his motion that his plea and conviction ought to be
set aside for that reason.
This court held that McPherson should be bound to the result because: (1) He had
been charged with attempted first-degree murder, a legally possible crime; (2) he
received a benefit in the plea bargain to the reduced charge; and (3) he voluntarily and
knowingly entered into the agreement. McPherson, 38 Kan. App. 2d at 284. That's the
pertinent holding and rule from McPherson. The crime at issue was attempted
unintentional second-degree murder. Both unintentional second-degree murder and
attempts were (and are) codified, statutory crimes. The Legislature enacted them
consistent with its declaration that no conduct should be considered a crime if not
included in the criminal code or elsewhere in the Kansas statutes. See K.S.A. 2016 Supp.
21-5103(a); K.S.A. 21-3102. So McPherson had nothing to do with a plea to a common-
law crime—the factual circumstance here. And the court did not mention, let alone
presume to consider or decide, the efficacy of a plea to a common-law crime.
Given the legislative banishment of common-law crimes, the holding of
McPherson cannot simply be lifted from that case and applied to this one without some
38
compelling explanation of why it should be considered analogous. Ultimately, I do not
see how McPherson can be treated as comparable and, thus, guiding authority for the
outcome here, given the marked differences between legislatively enacted statutory
crimes and legislatively banished common-law crimes.
In applying the holdings of cases resting on judicially made rules rather than
statutes, such as the ruling in McPherson, a court cannot simply detach those holdings
from their factual underpinnings. Illinois v. Lidster, 540 U.S. 419, 424, 124 S. Ct. 885,
157 L. Ed. 2d 843 (2004) (Language in judicial opinions should be read "as referring in
context to circumstances similar to the circumstances then before the Court and not
referring to quite different circumstances that the Court was not then considering.");
Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S. Ct. 165, 89 L. Ed. 118 (1944). In
Armour, Justice Robert Jackson admonished lawyers that "words of our opinions are to
be read in light of the facts of the case under discussion." 323 U.S. at 133. And he
cautioned: "General expressions transposed to other facts are often misleading." 323
U.S. at 133. The essential facts presented in a given case, then, reflect a critical part of
any resulting judicial rule. When a court weighs the applicability of such a rule to a new
set of facts, it should reason by analogy to determine the appropriateness of the rule to
those circumstances. That is, the court should ask whether the significant facts of the case
at hand are sufficiently similar to the case or cases in which the rule has been developed
and applied to warrant the same treatment. United States v. Standefer, 610 F.2d 1076,
1100 (3d Cir. 1979) (Aldisert, J., concurring in part, dissenting in part) ("Recognition of
the differences between the material facts of this case and those implicated in every case
cited in support of the result reached by the majority leads me to conclude that the cases
do not authoritatively support the majority's result."). If the facts are materially different,
the rule may be inapplicable or applicable only in some form modified to account for
those differences. Through that process, judge-made law develops more or less by
accretion. See Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 5
(1936).
39
Chief Justice Harlan F. Stone explained development of precedent this way:
"Decision has drawn its inspiration and its strength from the very facts which frame the
issues for decision. Once made, the decision controls the future judgments of courts in
like or analogous cases." 50 Harv. L. Rev. at 6. A decade later, Professor Edward H. Levi
described that methodology as "reasoning by example." Levi, An Introduction to Legal
Reasoning, 15 U. Chi. L. Rev. 501, 501 (1948). He explained the process: "[S]imilarity
is seen between cases; next the rule of law inherent in the first case is announced; then
the rule of law is made applicable to the second case." 15 U. Chi. L. Rev. at 501-02. In
that process, "the scope of a rule of law, and therefore its meaning, depends upon a
determination of what facts will be considered similar to those present when the rule was
first announced." 15 U. Chi. L. Rev. at 502. More recently, Professor Cass R. Sunstein
noted that reasoning by analogy continues to characterize judicial decision-making and
legal advocacy. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 741 (1993).
He offers a similar description of the analogical method. 106 Harv. L. Rev. at 745-46.
Advocates, thus, typically fashion appellate arguments through a like process of
analogy. Each side cites cases that it contends are factually and legally comparable to the
circumstances before the court and presses for application of the holdings in those cases
and, therefore, a like outcome. See United States v. Strickland, 144 F.3d 412, 416 & n.4
(6th Cir. 1998). The advocates also attempt to distinguish their adversaries' case authority
as less nearly analogous and ultimately inapplicable. The court replicates that process in
sorting through the dueling case authority to arrive at a ruling. See Levi, 15 U. Chi. L.
Rev. at 504.
Here, the majority abbreviates that process of reasoning-by-analogy and
reflexively invokes the rule from McPherson without accounting for the compelling
factual difference between that case and this one. The difference—rooted in legislative
abandonment of common-law crimes—requires a carefully reasoned rationale to warrant
even considering the McPherson rule here. See Sunstein, 106 Harv. L. Rev. at 757
40
("[A]nalogical reasoning can go wrong when . . . some similarities between two cases are
deemed decisive with insufficient investigation of relevant differences."). None is
forthcoming. By truncating that process, the majority effectively expands a rule to a new
and materially different situation for which it is neither obviously required by precedent
nor irrefutably a proper approach for the new. The majority purports to do no more than
follow precedent, but its opinion actually expands that precedent to reach an unwarranted
and impermissible outcome.
The other Kansas appellate cases the majority cites don't fill in the factual and
legal gap between the reasoning and holding in McPherson and the circumstances here.
In Spencer, the court declined to set aside a plea to and conviction for attempted
aggravated assault—a crime it characterized as "nonexistent" based on State v. Martinez,
20 Kan. App. 2d 824, 834, 893 P.2d 267 (1995), which reasoned that a defendant could
not be guilty of an attempted assault if the victim never perceived the threat and, thus,
was never placed in apprehension of bodily harm. 24 Kan. App. 2d at 126, 129. The court
found the plea to be appropriate because Spencer had been charged with aggravated
battery, realized a benefit from pleading to a reduced charge, and did so knowingly and
voluntarily, reflecting the same considerations the McPherson court later endorsed. 24
Kan. App. 2d at 129. But, as with McPherson, the plea in Spencer rested on a statutory
crime (aggravated assault) and a statutorily recognized principle of criminal liability
(attempt). The court didn't mention, let alone discuss, the ramifications of a plea to a
common-law crime. On review, the Kansas Supreme Court held that attempted
aggravated assault as then defined was, in fact, a crime and affirmed the denial of relief to
Spencer for that reason, rejecting the rationale underlying this court's opinions in Spencer
and Martinez. Spencer, 264 Kan. at 4-5. As a result, the Kansas Supreme Court didn't
address the boundaries of appropriately plea-bargained offenses and convictions.
The majority also relies on Easterwood v. State, 273 Kan. 361, 44 P.3d 1209
(2002), although it is far afield. Easterwood pleaded guilty to felony murder with a
41
favorable sentencing recommendation from the State along with the dismissal of other
felony charges. The factual circumstances involved an armed robbery that went awry.
Law enforcement officers arrived as the holdup was going on and fatally shot
Easterwood's partner after he shot at them. That was the killing underlying the felony-
murder charge.
Felony murder is a statutory crime, and at the time Easterwood pleaded, those
factual circumstances were at least consistent with a conviction. Nearly five years later,
the Kansas Supreme Court held that felony murder does not apply when the death of a
participant in the predicate crime results from the actions of law enforcement officers or a
resisting victim. See State v. Sophophone, 270 Kan. 703, 19 P.3d 70 (2001) (law
enforcement actions causing death); State v. Murphy, 270 Kan. 804, 19 P.3d 80 (2001)
(victim actions causing death), abrogated on other grounds by State v. Martin, 285 Kan.
735, 175 P.3d 832 (2008). Based in part on those decisions, Easterwood sought habeas
corpus relief under K.S.A. 60-1507 to set aside his plea and conviction. The court held
that Easterwood's plea conformed to the law governing felony murder when he entered it.
He could have challenged the felony-murder rule then but chose not to in preference to
the favorable plea deal. The court, therefore, declined to allow Easterwood to collaterally
attack the resulting conviction years later based on an intervening change in the law. 273
Kan. at 382-84.
As with Spencer and McPherson, the Easterwood decision has nothing to say
about pleas to and convictions for common-law crimes. The court most certainly did not
condone the practice of prosecutors, defense lawyers, and district courts inventing crimes
to dispose of cases. The decision neither directly nor indirectly supports the rule the
majority announces. And it does not preclude the transactional cost I would impose to
discourage what actually amounts to an improper usurpation of legislative authority.
42
The out-of-state cases the majority cites as a backstop for its peculiar use of
common-law crimes in plea bargaining are no more apt than Easterwood, Spencer, and
McPherson. See People v. Myrieckes, 315 Ill. App. 3d 478, 485, 734 N.E.2d 188 (2000)
(court held defendant cannot challenge on appeal sufficiency of evidence to support
voluntary plea to statutory crime and recognized general proposition without elaboration
that defendant may plead to "nonexistent crime"); People v. Genes, 58 Mich. App. 108,
109-12, 227 N.W.2d 241 (1975) (upholding plea to attempted manslaughter, a statutory
crime, even though record showed completed crime and mental state for attempt to
commit involuntary manslaughter legally impossible); People v. Foster, 19 N.Y.2d 150,
152-53, 278 N.Y.S.2d 603, 225 N.E.2d 200 (1967) (upholding conviction on plea to
attempted manslaughter in second degree, a statutory crime, although mental state for
attempt may be logically inconsistent with mental state for completed crime); People v.
Griffin, 7 N.Y.2d 511, 516, 199 N.Y.S.2d 674, 166 N.E.2d 684 (1960) (defendant
properly allowed to plead to attempted assault in second degree, a statutory crime, that
differed factually from more serious crime originally charged, although outcome may be
considered "a hypothetical situation without objective [factual] basis"); People v.
Guishard, 15 A.D.3d 731, 732, 789 N.Y.S.2d 332 (N.Y. App. Div. 2005) (upholding
conviction on plea to attempted assault in the first degree, a statutory crime, although
attempt deemed legal impossibility); People v. Barker, 221 A.D.2d 1018, 635 N.Y.S.2d
383 (N.Y. App. Div. 1995) (same, plea to attempted manslaughter in the first degree);
People v. Castro, 44 A.D.2d 808, 808, 356 N.Y.S.2d 49 (N.Y. App. Div. 1974) (rejecting
challenge to sufficiency of defendant's factual admission in support of plea to voluntary
manslaughter in first degree, a statutory crime, and noting in dicta without cited authority
defendant may plead to "hypothetical crime [that] has no elements"), aff'd 339 N.E.2d
620 (N.Y. 1975).
As a generic or abstract legal statement, the bare holding in McPherson arguably
would fit here only because the opinion doesn't explicitly link the holding itself to
statutory crimes or explicitly exclude common-law crimes. But a case holding can't
43
properly be applied by rote in that way precisely because the material facts necessarily
inform the scope of the rule. The holdings in McPherson, Spencer, and the other cases all
deal with statutory crimes without considering common-law crimes. Given the doubtful
viability of common-law crimes in Kansas, there is no good reason to presume the
McPherson court intended to permit—or even considered—what the majority does today.
Absent a compelling articulation of why McPherson and the other cases are sufficiently
analogous to plea bargaining for common-law crimes, they offer no obviously sound
analytical support for the majority's foray into what looks like unknown (and legally
dangerous) territory. The majority, then, simply ignores a fundamental difference
between those cases and this one that render them inapposite.[5]
[5] The McPherson decision and the other cases are also distinguishable in that
those defendants were trying to set aside their convictions. Pollman isn't challenging his
2011 conviction, only how it should be scored for criminal history purposes in this case.
We have no authority in this case to vacate the 2011 conviction even if we were disposed
to do so. Although the district court should never have accepted Pollman's plea to a
common-law crime in 2011, the conviction itself may fall in the category of what's done
is done. By the same token, however, we do have the authority to say how the 2011
conviction should be treated in determining Pollman's criminal history in this case. The
illegitimate foundation of the conviction in a statutorily unrecognized common-law crime
requires that we discount it.
Majority's Coda of Contradiction
In the coda to its opinion, the majority finds the common-law crime of discharging
a firearm at an unoccupied vehicle must be treated as an unclassified, omitted, or
unranked felony under K.S.A. 2016 Supp. 21-6807(c) and, therefore, should be scored as
a nonperson offense in determining Pollman's criminal history in this case. That
conclusion, however, ostensibly endorses legislative regulation of a conviction for a
common-law crime. So it conflicts with the majority's premise that plea bargains to
common-law crimes should be allowed in derogation of the Legislature's abolishment of
those crimes. Those two themes are, at the very least, difficult to reconcile into an
44
entirely coherent approach to plea bargaining to common-law crimes—a dissonance that
suggests jurisprudential mistake.
The majority first says pleas to and convictions for common-law crimes are not
among the convictions excluded from criminal history determinations in K.S.A. 2016
Supp. 21-6810(d), which outlines the treatment of various categories of convictions.
Although that's true, K.S.A. 2016 Supp. 21-6810 operates within the overarching
legislative directive in K.S.A. 2016 Supp. 21-5103(a) that crimes are limited to conduct
criminalized in the Kansas Criminal Code or in other statutes. And, in turn, only conduct
codified as such can result in convictions. By legislative design, K.S.A. 2016 Supp. 21-
6810 deals only with convictions for statutory crimes. Common-law crimes and
convictions logically go unmentioned in K.S.A. 2016 Supp. 21-6810 because the
Legislature has abolished them. No need or good purpose would be served in explicitly
excluding something that doesn't exist. The majority ignores that impediment and
proceeds to compound its illogic.
Under the 2011 plea agreement, the prosecutor and Pollman's lawyer treated their
invented common-law crime as a severity level 8 person felony. The district court
accepted that invention and imposed a guidelines sentence consistent with a severity level
8 felony. So the punishment range was driven by that treatment coupled with Pollman's
criminal history in 2011.
The majority then says the 2011 common-law conviction is properly considered a
felony because the penalty entailed a term of incarceration in a state prison and, thus, met
the statutory definition of a felony in K.S.A. 2016 Supp. 21-5102(a). To get there, the
majority must give legal effect to the decision of the parties and the district court in
ascribing some severity level to the crime, thereby making it a felony. If the ascription
were discarded, discharging a firearm at an unoccupied vehicle would carry no defined
penalty. That would make it a misdemeanor under the catch-all in K.S.A. 2016 Supp. 21-
45
5102(d) for criminal conduct not otherwise classified as a felony, a traffic infraction, or a
cigarette or tobacco infraction, and, in turn, an unclassified misdemeanor under K.S.A.
2016 Supp. 21-6602(a)(4). It would be scored as a nonperson misdemeanor. K.S.A. 2016
Supp. 21-6810(d)(6).
But the majority then retreats from accepting the particular designation the parties
and the district court gave discharging a firearm at an unoccupied vehicle as a person
offense rather than a nonperson offense and as a severity level 8 offense. The majority
reasons that the common-law crime has been "'omitted from the crime severity scale'"
and should be "'considered [a] nonperson felon[y]'" under K.S.A. 2016 Supp. 21-
6807(c)(2). Slip op. at 25. This abrupt about-face is mystifying. The parties and the
district court gave it a severity level on the scale. The Legislature hasn't—it doesn't
recognize discharging a firearm at an unoccupied vehicle as a crime at all. But if the
parties and the district court have some sort of inherent authority to ignore K.S.A. 2016
Supp. 21-5103(a) to invent a common-law crime for a plea bargain, why doesn't that
authority similarly permit them to ignore K.S.A. 2016 Supp. 21-6807(c)(2) to assign their
invention a particular severity level or to treat it as a person felony? And if they can't
assign a severity level, by what authority do they get to declare their invention a felony at
all—a declaration the majority accepts without question or reservation?
It seems to me the majority's plea-bargaining beast requires unwavering
allegiance. If the parties and the district court can make up crimes for plea-bargained
convictions as the majority erroneously posits, they ought to be able to designate them as
person or nonperson offenses and assign a felony the severity level they choose. I don't
see how fealty to the beast stops at simply naming the crime and treating it as some
generic felony. Or examining this thing from the legislative perspective, either the
statutory scheme for criminalizing conduct and punishing crimes governs or it doesn't.
There is no halfway.
46
The majority's beast is both demanding and messy. I dissent from its creation.
47