State v. Whiteman ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,338
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TRAVIS J. WHITEMAN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed March 11, 2022.
Affirmed in part, sentence vacated, and case remanded with directions.
Kristen B. Patty, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before SCHROEDER, P.J., BRUNS and WARNER, JJ.
PER CURIAM: Travis J. Whiteman appeals the district court's denial of his
presentence motion to withdraw plea and the district court's denial of his motion
challenging his criminal history score. Upon extensive review of the record before us, we
find the district court did not abuse its discretion by denying Whitman's second motion to
withdraw his plea. However, we find the district court improperly scored Whiteman's
three prior Texas felonies for possession of child pornography as person felonies in
Kansas to establish his criminal history score. Therefore, we affirm in part, vacate
Whiteman's sentence, and remand for resentencing.
1
FACTS
In March 2017, Travis J. Whiteman, a then-31-year-old man, posed as a 14-year-
old boy on a dating website and requested a "sexy pic" from an account profile of a 14-
year-old female. Whiteman specifically asked the girl to send a picture of her "tits." The
record reflects the female profile either belonged to an undercover police officer or was
flagged and then sent to a police detective. The State charged Whiteman with sexual
exploitation of a child, in violation of K.S.A. 2016 Supp. 21-5510(a)(1), a severity level 5
person felony.
Whiteman waived his preliminary hearing and initially pled not guilty. Based on
plea negotiations, Whiteman entered a plea of guilty to sexual exploitation of a child in
October 2018. As part of the plea agreement, the State agreed not to charge Whiteman
with prior violations of the Kansas Offender Registration Act (KORA), K.S.A. 2016
Supp. 22-4901 et seq., and further agreed to recommend the low sentencing number in
the appropriate grid box. Prior to sentencing, Whiteman was allowed to withdraw his plea
based on a mutual mistake between him and the State as to the application of the
persistent sex offender special rule under K.S.A. 2016 Supp. 21-6804(j). The special rule
required the district court to double the defendant's sentence under the revised Kansas
Sentencing Guidelines Act (KSGA), K.S.A. 2016 Supp. 21-6801 et seq. Whiteman's case
was then placed back on the trial docket.
In September 2019, Whiteman entered into a second plea agreement, and the
district court conducted another plea hearing. Like his first plea hearing, Whiteman
confirmed he had consumed no drugs, alcohol, or medication affecting his ability to
understand the proceeding. The district court once again went over Whiteman's rights and
the consequences of entering a plea. The district court specifically asked about
Whiteman's satisfaction with his attorney:
2
"THE COURT: You are represented in this case by Miss McFerren and Miss
Mitchell; is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: Have you had enough time to discuss with these attorneys the
charges filed against you, your rights in this case and the consequences of changing your
plea?
"THE DEFENDANT: Yes, sir.
"THE COURT: Are you satisfied with the services of both attorneys in this
case?
"THE DEFENDANT: Miss McFerren, I'm about halfway 50 percent with her.
"THE COURT: Okay. Do you believe that you are—that she has provided the
type of services in this case that you are comfortable going forward with this plea?
"THE DEFENDANT: Yes, sir.
"THE COURT: Okay. Do you have anything further to discuss with Miss
Mitchell at this point with regard to your rights in this case?
"THE DEFENDANT: No sir.
"THE COURT: Do you wish a break in this case to discuss anything further with
your attorney?
"THE DEFENDANT: No, sir."
Whiteman confirmed it was solely his decision to sign the acknowledgment of
rights and entry of plea, he had ample time to review the documents completely with his
attorney, and he was aware of his possible sentence under the persistent sex offender
special rule. Just as in Whiteman's first plea hearing, the district court explained the terms
of the plea agreement on the record. In exchange for a successful guilty plea, the State
agreed not to charge Whiteman for violating KORA and, though his sentence would
double under the persistent sex offender special rule, the State would recommend the low
number in the appropriate grid box as his sentence before it was doubled. Whiteman pled
guilty.
The district court explained the State's charge against Whiteman as alleged in the
charging document, just as it had done in Whiteman's first plea hearing. Whiteman stated
3
he believed the allegations in Count 1—sexual exploitation of a child—were true. The
district court again found:
• Whiteman understood the nature of the charge against him, the consequences
of his plea, and the possible penalties he faced by entering a guilty plea;
• Whiteman had knowingly, willingly, and voluntarily waived his constitutional
rights, including the right to a jury trial, by entering a guilty plea; and
• a factual basis existed to accept Whiteman's plea.
The district court accepted Whiteman's guilty plea and convicted him of sexual
exploitation of a child. The district court further determined it could still use the
presentence investigation (PSI) report it had ordered after Whiteman's first guilty plea.
The PSI report reflected Whiteman's criminal history score was A based on his three
prior Texas convictions for possession of child pornography.
Whiteman timely filed a motion asking for a departure sentence, arguing he
accepted responsibility for his actions, saving the State time by not trying his case before
a jury; he was "'an excellent candidate for specific sex offender treatment available in the
community,'" which would help reduce the likelihood of recidivism; and his entire
criminal history arose out of a single case in 2013.
Whiteman also began an extensive pro se motion practice with a pro se "Notice to
the Court . . . by and through jail house counsel," alleging a lack of timely and
meaningful communication with his defense counsel, Dwayna McFerren. Whiteman
claimed, among other things, his counsel did not account for Whiteman's desire to
meaningfully participate in his defense; failed to consult with him when scheduling
hearings; continued judicial proceedings without his consent; failed to respond to letters;
and failed to provide requested documents related to his defense. Whiteman alleged his
4
counsel "seems to miss a lot of important rules or facts" and failed to inform him of all
reasonable defenses.
Shortly after Whiteman filed his pro se notice to the court, his counsel filed a
motion to challenge Whiteman's criminal history. The motion asserted the crimes listed in
Whiteman's PSI report were in error and, even if the contested entries did exist, his prior
Texas crimes should not be person felonies because there was no comparable Kansas
crime. Whiteman then filed a pro se motion to withdraw his plea and correct his criminal
history score. Whiteman essentially mimicked his counsel's motion challenging his
criminal history score and alleged an improper criminal history score invalidated his plea
agreement. His pro se motion was once again signed by "jail house counsel."
About 10 days later, Whiteman filed a pro se "letter to the court." Whiteman cited
several cases from other jurisdictions and argued, in part, mere nudity did not constitute
child pornography and his request for nude photographs was not unlawful. Whiteman
acknowledged he made a poor decision but claimed his actions were not illegal. He also
argued his request for the young girl to send him a photograph was vague and, by asking
her to "show [Whiteman her] tits," he was not necessarily seeking a nude photograph.
Whiteman then filed a pro se motion for judgment of acquittal, essentially
claiming actual innocence and arguing his request for mere nudity did not amount to
child pornography. Whiteman cited several cases suggesting nudity, without more,
constituted a protected expression under the First Amendment to the United States
Constitution. He also contended the district court could not accept his plea because there
was an insufficient factual basis to establish the crime.
In June 2020, the district court held a hearing on Whiteman's motion to withdraw
his second plea of guilty. Whiteman testified he had seen his defense counsel two to three
times before waiving his preliminary hearing. However, he provided conflicting
5
testimony. Whiteman explained his counsel never discussed waiving his preliminary
hearing with him but also testified his counsel explained why he should consider waiving
his preliminary hearing. Whiteman confirmed his counsel had provided him with the
discovery in his case and discussed what could happen if he proceeded to jury trial.
Whiteman acknowledged he had accepted his original plea agreement with the
State, the district court permitted him to withdraw his plea, and he later entered a second
plea agreement. Whiteman again admitted he knew the potential penalties he could face
when he entered the second plea agreement. He claimed his attorney never discussed with
him whether he should plead or proceed to trial.
Whiteman claimed he sent letters to his counsel asking about potential defenses in
his case and those letters were either ignored or lost in the mail. Whiteman admitted he
met with his counsel in the jail about six times. He recalled the district judge went over
the plea agreement with him at the second plea hearing and discussed the consequences
of his plea but did not follow up on his dissatisfaction with counsel. Whiteman claimed
his current dissatisfaction arose from unanswered questions about his plea and because
his counsel had another attorney stand in for her at the hearing.
While in jail, Whiteman conducted his own research and wanted to withdraw his
second plea based on a claim of actual innocence and competency of counsel for failing
to bring any defenses to his attention. Whiteman admitted when he entered his second
plea he wanted to do so, though reluctantly. Whiteman stated his counsel made no
promises she would successfully obtain a lesser sentence but would still ask the district
court.
McFerren was called to testify. Her testimony reflected that after she reviewed the
discovery with Whiteman, Whiteman waived his preliminary hearing because it
prevented the State from charging him with a more serious offense: specifically,
6
Whiteman had failed to register as a sex offender based on his prior Texas convictions for
possession of child pornography. McFerren also discussed with Whiteman the possibility
of working out a plea agreement.
McFerren received the first plea offer from the State and presented it to Whiteman.
He agreed with it. McFerren testified it was common for a colleague to appear in court on
her behalf to enter a plea in her cases. Still, before the hearing, McFerren personally went
over the acknowledgment of rights and plea agreement with Whiteman in jail. Whiteman
knew the State was not going to charge him for failing to register as a sex offender and
determined he wanted to enter a plea. After the first plea agreement was withdrawn,
McFerren tried to negotiate more favorable language in the plea agreement but was
unable to do so. Whiteman signed the second plea agreement in the jail with McFerren
present after it was again explained to him.
McFerren learned of Whiteman's dissatisfaction with her toward the end of her
representation when she went to discuss the motion challenging his criminal history.
Whiteman told McFerren he had filed a motion to have her removed as counsel but
decided to withdraw that motion. McFerren never threatened Whiteman to enter a plea,
never made promises outside the plea agreement, never promised a probation sentence,
and never promised a successful criminal history challenge.
McFerren discussed the risks associated with a jury trial and the fact the State
could present evidence of his prior Texas offenses, which could be devastating to his
defense. Based on the information McFerren provided, Whiteman again chose to enter a
plea. Whiteman never proffered a claim of actual innocence to McFerren. The district
court requested a transcript of Whiteman's second plea hearing and continued the hearing
on Whiteman's motion to withdraw his plea.
7
In a written motion minutes sheet, the district court found McFerren's testimony
was credible and Whiteman's was not. The district court specifically explained:
"First, the Court finds that Ms. McFerren is competent counsel. Ms. McFerren
has been a criminal defense attorney in the Public Defender's office for 4 1/2 years. She
met with [Defendant] on repeated occasions, as confirmed by Defendant, and guided him
through not one but two plea hearings. . . . Defendant testified that he was '50/50' with
Ms. McFerren, when the Court inquired at the second plea hearing whether he was
satisfied with Ms. McFerren as his counsel. At the hearing on the Motion to Withdraw
Plea, Defendant testified that the Court did not follow up or inquire about this statement.
Defendant's statement is not credible. The record reflects that the Court followed up with
three additional questions to clarify that Defendant was satisfied with Ms. McFerren, and
proceeded only after Defendant assured the Court that he was comfortable going forward,
that he had nothing further to discuss with counsel, and that he did not wish a break in the
proceedings to speak to counsel. Defendant's testimony in contradiction to the record is
not credible. Ms. McFerren discussed defenses and his criminal history with the
Defendant.
"Further, Ms. McFerren is credible when she testified that Defendant only now
brings up the topic of actual innocence, and never brought up the subject throughout the
two plea hearings. It is clear that Defendant had all of the discovery, had a chance to
review it, and met with Ms. McFerren in the jail at least six times.
"Finally, the Court went over the [Acknowledgment] of Rights and Entry of Plea
form with Defendant on the record. He signed the document and acknowledged that he
went over it with counsel and understood it.
"Second, there is no evidence that Defendant was misled, coerced, mistreated or
taken advantage of. Defendant knew his criminal history score was A, knew he would be
deemed a persistent sex offender, and that his status [as] such would double his sentence.
"Third, the plea was fairly and understandingly made. The parties agreed that
Defendant should be allowed to withdraw the first plea, and the Court ordered it. The
benefit for Defendant was that his rights were explained not once but twice. He knew his
rights and chose to enter the second plea. His claims about discovering defenses after the
plea was entered is speculative. These do not persuade this Court that his plea was not
made fairly and understandingly."
8
The district court denied Whiteman's motion to withdraw his second plea, finding
he failed to show good cause under K.S.A. 2019 Supp. 22-3210(d)(1). Whiteman's new
counsel filed a motion for judgment of acquittal, adopting the arguments Whiteman had
made in his pro se motion. Whiteman's counsel also filed a motion to find KORA
registration requirements cruel and unusual punishment.
The district court granted Whiteman a downward durational departure as the
parties agreed to in the plea agreement and sentenced him based on his criminal score of
A to 61 months' imprisonment, which was then doubled under the persistent sex offender
special rule for a controlling term of 122 months' imprisonment. The district court
reasoned the harm was less than typical as it did not appear Whiteman received the
photograph he was seeking, and the young girl may have been an undercover police
officer. The district court denied Whiteman's motion to find KORA registration
requirements cruel and unusual punishment, his motion for judgment of acquittal, and his
motion challenging his criminal history score.
ANALYSIS
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION TO DENY WHITEMAN'S
SECOND PRESENTENCE MOTION TO WITHDRAW HIS PLEA.
Whiteman argues he was unable to discuss any potential defense with his trial
counsel despite admitting he consulted with his attorney multiple times. After entering
his second plea, Whiteman believed he discovered a potential defense his attorney failed
to discuss with him. He explained in his second motion to withdraw his plea he believed
the facts alleged in the probable cause affidavit did not constitute a crime and the denial
of his motion to withdraw his plea must be reversed.
9
The State responds Whiteman's argument is meritless as the factual basis for his
plea did not stem from the probable cause affidavit. The State contends the factual basis
for Whiteman's plea was established by the district court reading the complaint and
Whiteman agreeing the allegations were true.
When the district court denies a defendant's motion to withdraw a plea before
sentencing, the defendant must establish on appeal how the district court abused its
discretion in denying the motion. "A judicial action constitutes an abuse of discretion if
(1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is
based on an error of fact. [Citation omitted.]" State v. Frazier, 311 Kan. 378, 381, 461
P.3d 43 (2020). "Appellate courts do not reweigh the evidence or assess witness
credibility. Instead, appellate courts give deference to the trial court's findings of fact.
[Citation omitted.]" State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
Whiteman bears the burden to establish the district court erred in denying his presentence
motion to withdraw his plea. See State v. Schow, 287 Kan. 529, 541, 197 P.3d 825(2008). Further,
"[e]ntry of a plea of guilty or nolo contendere necessarily implies acknowledgment by all
concerned—the defendant, the State, and the court—that a jury could go either way and
that a risk-benefit analysis has taken place on both sides. The prosecution and the defense
have something to gain and something to lose in any plea bargain." State v. Green, 283
Kan. 531, 547, 153 P.3d 1216 (2007).
"[A] defendant should not get relief from a plea decision simply because he or she
determines, in hindsight, that it was not the most intelligent course of action." Schow, 287
Kan. at 542.
Under K.S.A. 2020 Supp. 22-3210(d)(1), a guilty plea may be withdrawn before
sentencing "for good cause shown and within the discretion of the court . . . ." When
determining whether a defendant has shown good cause, a district court should consider
10
"whether '(1) the defendant was represented by competent counsel, (2) the defendant was
misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly
and understandingly made.' [Citations omitted.]" State v. Edgar, 281 Kan. 30, 36, 127
P.3d 986 (2006). Other non-Edgar factors that could impact a plea withdrawal should not
be ignored. Frazier, 311 Kan. at 381. A claim of innocence may support good cause to
withdraw a plea. State v. Garcia, 295 Kan. 53, 63, 283 P.3d 165 (2012).
On appeal, Whiteman does not maintain his prior arguments alleging incompetent
counsel, nor does he claim he was misled, coerced, mistreated, or unfairly taken
advantage of. Whiteman, therefore, waives and abandons any such argument on appeal as
it specifically relates to the first two Edgar factors. See State v. Arnett, 307 Kan. 648,
650, 413 P.3d 787 (2018) (issue not briefed deemed waived or abandoned).
Whiteman now contends he can challenge the factual basis supporting his plea
through a motion to withdraw plea. This argument falls under the third Edgar factor
about whether the plea was fairly and understandingly made. We interpret Whiteman's
argument on appeal as a challenge of the sufficiency of the factual basis for his plea and
potentially setting forth an argument claiming actual innocence.
Whiteman's brief fails to directly assert a claim of actual innocence, and any
incidental claim of actual innocence is vague and convoluted. This potential claim, if one
exists at all, is not adequately briefed and, therefore, waived or abandoned. See State v.
Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019).
This leaves us with Whiteman's claim the factual basis to support his plea was
insufficient. The district court simply explained, "[T]here [was] a factual basis put forth
at the time of the plea and [Whiteman] agreed with that." Whiteman agreed with the
State's allegations in the charging document.
11
We observe that Whiteman's argument is not well developed. The issue is
complicated by the fact Whiteman was clearly aware of the factual basis supporting his
plea, as he argued in a pro se motion to the district court that the probable cause affidavit
was insufficient to support his plea, but his plea was not based on the probable cause
affidavit. Whiteman has not properly framed or briefed the argument regarding the
sufficiency of the allegations in the charging document as a factual basis for his plea. His
brief on this issue is limited to one paragraph. Accordingly, we find Whiteman waived or
abandoned his claim by failing to adequately brief the issue on appeal. See Salary, 309
Kan. at 481.
The record reflects that after Whiteman was allowed to withdraw his first plea,
Whiteman knew the basis of the charges against him, the benefit he was receiving by his
plea, and the potential penalties, including the special rule which would double his
sentence. Whiteman had reviewed the acknowledgment of rights twice over the span of
two years with his attorney and went over the plea agreement with two different district
judges. Both district judges advised Whiteman of his rights, and Whiteman entered a
guilty plea both times. Whiteman, while relying on the third Edgar factor—the plea was
not fairly and understandingly made—has not met his burden to show the district court
abused its discretion when it denied his presentence motion to withdraw his guilty plea.
II. WHITEMAN'S CRIMINAL HISTORY SCORE IS INCORRECT.
Whiteman next argues the district court erred in scoring his three Texas possession
of child pornography convictions as person felonies when it calculated his criminal
history score and in classifying him as a persistent sex offender. Whiteman asks us to
vacate his sentence and remand to the district court for a new sentencing hearing. The
State responds Whiteman's prior Texas convictions for possessing child pornography
were properly classified as person felonies. The State explains the Texas offense of
12
possession of child pornography Whiteman was convicted of is identical to or narrower
than the Kansas offense of sexual exploitation of a child.
Whether a sentence is illegal under K.S.A. 2020 Supp. 22-3504 turns on
interpretation of the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020
Supp. 21-6801 et seq. See State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016). An
"'[i]llegal sentence,'" as defined by K.S.A. 2020 Supp. 22-3504(c)(1), is "a sentence:
[i]mposed by a court without jurisdiction; that does not conform to the applicable
statutory provision, either in character or punishment; or that is ambiguous with respect
to the time and manner in which it is to be served at the time it is pronounced." To
determine whether a prior conviction should be designated as a person or nonperson
offense involves interpretation of the KSGA, which is a question of law subject to
unlimited review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).
Calculating criminal history score based on a comparable offense in another state
All felony convictions and adjudications occurring prior to the current sentencing
are considered when calculating a criminal history score. Wetrich, 307 Kan. at 555. "If a
crime is a felony in the convicting jurisdiction, it will be counted as a felony in Kansas."
K.S.A. 2020 Supp. 21-6811(e)(2)(A). The parties agree Whiteman's Texas convictions
for possession of child pornography under Tex. Penal Code § 43.26 (2012) were felony
offenses, making the crimes felonies in Kansas for calculating his criminal history score.
See Tex. Penal Code § 43.26(d).
A crime is also designated as person or nonperson. K.S.A. 2020 Supp. 21-
6811(e)(3). When considering an out-of-state conviction for classifying a defendant's
criminal history score, the district court must refer to the Kansas Criminal Code in effect
on the date the current crime of conviction was committed to find a comparable offense.
An out-of-state conviction is considered a nonperson crime if there is no comparable
13
Kansas offense in effect on the date the defendant committed the current crime of
conviction. K.S.A. 2020 Supp. 21-6811(e)(3)(A). Our Supreme Court explained that "the
elements of the out-of-state crime cannot be broader than the elements of the Kansas
crime. In other words, the elements of the out-of-state crime must be identical to, or
narrower than, the elements of the Kansas crime to which it is being referenced."
Wetrich, 307 Kan. at 562.
Whiteman's PSI report showed he was convicted in August 2013 of three counts of
possession of child pornography under Tex. Penal Code Ann. § 43.26 for acts committed
in August 2012. The State supplemented the record on appeal to include certified
documents from Williamson County, Texas, regarding Whiteman's three prior Texas
convictions. At Whiteman's sentencing hearing, the State admitted the certified
documents without objection. The district court determined the Kansas crime of sexual
exploitation of a child was a comparable Kansas offense under Wetrich.
The State correctly points out Tex. Penal Code Ann. § 43.26 contained two
separate crimes—possession of child pornography under subsection (a) and promotion of
child pornography under subsection (e). On appeal, both parties reference Whiteman's
prior Texas convictions fell under Tex. Penal Code Ann. § 43.26(a), possession of child
pornography.
To determine whether the district court should classify Whiteman's Texas
possession of child pornography convictions as person or nonperson offenses, the
elements of the Texas crime must be compared with the elements of the comparable
Kansas offense in March 2017, when Whiteman committed his current crime of
conviction.
Tex. Penal Code Ann. § 43.26(a) stated the crime of possession of child
pornography has been committed if:
14
"(1) the person knowingly or intentionally possesses visual material that visually
depicts a child younger than 18 years of age at the time the image of the child was made
who is engaging in sexual conduct; and
"(2) the person knows that the material depicts the child as described by
Subdivision (1)."
K.S.A. 2016 Supp. 21-5510(a)(2) defined sexual exploitation of a child as:
"[P]ossessing any visual depiction of a child under 18 years of age shown or heard
engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or
appeal to the prurient interest of the offender or any other person."
Whiteman argues the Texas crime of possession of child pornography is not
comparable to the Kansas crime of sexual exploitation of a child. Specifically, Whiteman
claims Texas' definition of sexual conduct is broader than Kansas' definition of sexually
explicit conduct.
In Texas:
• "'Sexual conduct' means sexual contact, actual or simulated sexual
intercourse, deviate sexual intercourse, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or
any portion of the female breast below the top of the areola." Tex. Penal
Code Ann. § 43.25(a)(2) (2012).
• "'Simulated' means the explicit depiction of sexual conduct that creates
the appearance of actual sexual conduct and during which a person
engaging in the conduct exhibits any uncovered portion of the breasts,
genitals, or buttocks." Tex. Penal Code Ann. § 43.25(a)(6) (2012).
15
• "'Deviate sexual intercourse' means any contact between the genitals of
one person and the mouth or anus of another person." Tex. Penal Code
Ann. § 43.01(1) (2012).
• "'Sexual contact' means any touching of the anus, breast, or any part of
the genitals of another person with intent to arouse or gratify the sexual
desire of any person." Tex. Penal Code Ann. § 43.01(3) (2012).
In Kansas:
• "'Sexually explicit conduct' means actual or simulated: Exhibition in the
nude; sexual intercourse or sodomy, including genital-genital, oral-
genital, anal-genital or oral-anal contact, whether between persons of
the same or opposite sex; masturbation; sado-masochistic abuse with the
intent of sexual stimulation; or lewd exhibition of the genitals, female
breasts or pubic area of any person." K.S.A. 2016 Supp. 21-5510(d)(1).
• "'[N]ude' means any state of undress in which the human genitals, pubic
region, buttock or female breast, at a point below the top of the areola, is
less than completely and opaquely covered." K.S.A. 2016 Supp. 21-
5510(d)(4).
Whiteman's argument focuses on the term sexual conduct. In Texas, sexual
conduct includes sexual bestiality, but sexually explicit conduct in Kansas does not
include sexual bestiality. Whiteman admits the Kansas statute for sodomy, K.S.A. 2016
Supp. 21-5501(b), includes "oral or anal copulation or sexual intercourse between a
person and an animal," but the Kansas Legislature did not include such definition in the
sexual exploitation of a child statute.
16
Whiteman is correct the Texas statute for possession of child pornography under
which Whiteman was convicted includes bestiality, making it broader than the
comparable Kansas statute which does not include such sexual conduct. Compare Tex.
Penal Code Ann. § 43.25(a)(2) with K.S.A. 2016 Supp. 21-5510(d)(1). The State
included the charging documents from Whiteman's prior Texas convictions in the record
on appeal, but, under State v. Gales, 312 Kan. 475, 485, 476 P.3d 412 (2020), we must
compare the statutes on an elements-to-elements basis without reference to the evidence
surrounding prior convictions. Based solely on an elements-to-elements comparison,
without reference to the evidence surrounding Whiteman's prior Texas convictions, the
Texas statute is broader than the Kansas statute. Therefore, the district court erred in
rejecting Whiteman's challenge to his criminal history score because the conduct
underlying his three prior out-of-state convictions for possession of child pornography
was broader than the conduct prohibited by the comparable Kansas statute—here, K.S.A.
2016 Supp. 21-5510(a)(2)—in effect at the time of his current crime of conviction. See
Wetrich, 307 Kan. at 562. The district court improperly scored Whiteman's three Texas
convictions for possession of child pornography as person felonies to establish his
criminal history score. Accordingly, we vacate Whiteman's sentence and remand to the
district court to resentence Whiteman with his prior Texas child pornography convictions
to be scored as nonperson felonies.
We pause to note that we appreciate the logic of the State's critique of Wetrich as it
applies to crimes committed directly involving another person. But, as Whiteman
correctly notes in his reply brief, we must apply Wetrich as we are duty-bound to follow
our Supreme Court precedent unless there is some indication our Supreme Court is
departing from its previous position. See State v. Rodriguez, 305 Kan. 1139, 1144, 390
P.3d 903 (2017). We observe no indication our Supreme Court intends to depart from its
previous position in Wetrich. Here, this is especially concerning because the conduct
prohibited by Tex. Penal Code Ann. § 43.26 is essentially identical to the conducted
prohibited by K.S.A. 2016 Supp. 21-5510(a)(2), except for the additional conduct
17
included in the Texas statute—depictions of a child engaged in "sexual bestiality." Tex.
Penal Code Ann. § 43.25(a)(2).
As previously noted, under K.S.A. 2016 Supp. 21-5501(b), sexual acts between a
person and an animal would constitute the person felony of criminal sodomy. Thus, it
seems something of an absurd result that we are compelled to score Whiteman's prior
Texas convictions as nonperson felonies simply because the Texas statute includes
additional conduct that would be a person felony under another Kansas statute. In other
words, because the Texas statute includes conduct that is a person felony under two
different Kansas statutes, under Wetrich, we are forced to score it as a nonperson felony.
We seriously question whether the Legislature intended such a result, especially given
our Supreme Court's recognition the KSGA should be interpreted in a manner consistent
with the Legislature's intent "for sentences to reflect ever-evolving sentencing
philosophies and correction goals." State v. Keel, 302 Kan. 560, 588, 357 P.3d 251(2015). We hope our Supreme Court will provide appropriate guidance for cases such as
this, which seemingly are not expressly contemplated by the KSGA or our Supreme
Court's interpretation of the KSGA under Wetrich.
Affirmed in part, sentence vacated, and case remanded for resentencing.
18