State v. McGinn ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 122,908
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CARLON D. MCGINN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Opinion filed April 22, 2022.
Affirmed.
Carlon D. McGinn, appellant pro se.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ATCHESON, P.J., HILL and GARDNER, JJ.
PER CURIAM: Defendant Carlon D. McGinn appeals the Sedgwick County District
Court's denial of his motion asserting sentences imposed on him in 2003 were illegal
because his earlier Colorado conviction for menacing was improperly scored as a person
felony, thereby increasing the presumptive punishments in this case. Representing
himself in the district court and now on appeal, McGinn presents diffuse arguments that
largely seem to rehash an earlier and unsuccessful motion. We find no basis in McGinn's
claims for granting relief and, therefore, affirm the district court.
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In 2003, McGinn pleaded guilty to rape and aggravated criminal sodomy in the
district court and was sentenced based on a criminal history of B that included as a person
felony a conviction under Colo. Rev. Stat. § 18-3-206 (2000) for the crime of menacing.
Ten years later, McGinn filed a motion to correct the sentences as illegal, as provided in
K.S.A. 22-3504, because the Colorado conviction should have been classified as a
nonperson felony. If that were correct, McGinn would be entitled to be resentenced with
a lower criminal history. The district court denied that motion, and we initially remanded
the claim to the district court for further review. The district court again denied the
motion, and we affirmed that ruling. State v. McGinn, No. 117,495, 2018 WL 3485725, at
*3-4 (Kan. App. 2018) (unpublished opinion).
In 2019, McGinn filed another motion to correct illegal sentences—that is the one
we are now considering. The district court denied it, relying on res judicata ostensibly
grounded in our earlier decision. McGinn has appealed. There appear to be no factual
disputes underlying the issues, so we review the matter without any particular deference
to the district court. State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015).
To the extent McGinn's motion could be denied based on a preclusion doctrine, we
suppose it would be law of the case rather than res judicata, since both motions have been
filed in a single case. See State v. Williams, No. 118,781, 2018 WL 6580086, at *3 (Kan.
App. 2018) (unpublished opinion) (contrasting res judicata and law of the case). Rather
than getting bogged down in differentiating law of the case from res judicata and
determining whether one applies, we skip over preclusion and examine the merits of what
we understand McGinn to be arguing. We may do so because law of the case and res
judicata are prudential rules that do not strip a court of subject matter jurisdiction.
In reviewing a claim that a sentence is illegal, we apply the statutes and rules
governing the determination of criminal histories in place when the challenged sentence
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was imposed. Here, that would be 2003. If McGinn's sentences were lawful then, we will
not disturb them now. See State v. Weber, 309 Kan. 1203, 1209, 442 P.3d 1044 (2019).
In 2003, out-of-state convictions were scored as felonies or misdemeanors based
on how the convicting jurisdiction categorized them. It is undisputed that Colorado
treated McGinn's conviction for menacing under Colo. Rev. Stat. § 18-3-206 as a felony.
To determine whether an out-of-state conviction should be considered a person offense or
a nonperson offense, the sentencing court would look at the comparable Kansas crime—
based on the similarity of the statutory elements—and apply the designation for the
Kansas crime. To be "comparable" in 2003, the Kansas crime had to have elements
similar to, although not necessarily the same as or narrower than, the out-of-state crime.
Weber, 309 Kan. at 1209.
The record on appeal shows that the incident resulting in the Colorado conviction
for felony menacing occurred in September 2001, so we consider the version of Colo.
Rev. Stat. § 18-3-206 in effect then. The Colorado Legislature recently amended the
statute, but those amendments are irrelevant.
Against that legal backdrop, we gather McGinn to be making three arguments.
First, McGinn contends the classification of his Colorado conviction for criminal history
purposes entails impermissible judicial fact-finding violating Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by usurping a criminal
defendant's right to jury trial secured in the Sixth and Fourteenth Amendments to the
United States Constitution. The Kansas Supreme Court has consistently rejected that
construction of the rule laid down in Apprendi. State v. Razzaq, 309 Kan. 544, 552, 439
P.3d 903 (2019); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). Likewise, the
comparison of an out-of-state conviction with a comparable Kansas crime for criminal
history purposes requires no fact-finding implicating Apprendi because the task depends
on an evaluation of the statutory elements wholly divorced from the factual
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circumstances of the defendant's conviction. See State v. Mejia, 58 Kan. App. 2d 229,
240, 466 P.3d 1217 (2020). McGinn's initial contention fails.
Second, McGinn argues Colo. Rev. Stat. § 18-3-206 creates two distinct ways of
committing the crime of felony menacing and that the State has failed to prove which one
covered his conviction. Although McGinn's assertion is correct, the argument affords him
no relief because both versions of menacing are comparable to person crimes under the
Kansas Criminal Code. In turn, the Colorado conviction was properly scored as a person
felony for criminal history purposes.
Under Colo. Rev. Stat. § 18-3-206(1)(a) and (b), a defendant committed felony
menacing by placing or attempting to place another "in fear of imminent serious bodily
injury" by: (a) using a deadly weapon or "any article" used or fashioned in a manner
that would cause a person to reasonably believe it to be a deadly weapon; or (b)
representing verbally or otherwise he or she is armed with a deadly weapon. The first
way conforms to aggravated assault in Kansas as it was defined in 2003. The gravamen
of the Kansas crime was placing the victim in "reasonable apprehension of immediate
bodily harm" using a deadly weapon. See K.S.A. 21-3410 (defining aggravated assault,
incorporating elements of simple assault in K.S.A. 21-3408). The Kansas statute
criminalizes inducing fear in the victim as its primary purpose and thus entails a victim-
oriented perspective on what constitutes a deadly weapon, so an unloaded handgun or
realistic looking water pistol would be sufficient. See State v. Deutscher, 225 Kan. 265,
271-72, 589 P.2d 620 (1979) (pointing unloaded revolver at victim sufficient to support
conviction for aggravated assault, since crime rests on perpetrator's "apparent ability" to
inflict harm); State v. Collins, No. 119,522, 2019 WL 2554096, at *2-3 (Kan. App. 2019)
(unpublished opinion). The Colorado crime of felony menacing captured the same
approach in shaping the elements to encompass the victim's perception of the weapon
resulting in a present fear of serious bodily harm.
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The Kansas crime of aggravated assault does not directly cover the second way of
committing felony menacing in Colorado—a defendant's representation of having a
deadly weapon without displaying any object purporting to be the weapon. So a
defendant's statement, "I have a gun, and I'm going to mess you up!" presumably would
be sufficient to convict of felony menacing, even if the defendant had no firearm or other
deadly weapon. The crime, however, is arguably comparable to Kansas aggravated
assault, given the victim-oriented perspective of both offenses, since the induced fear or
apprehension would be the same.
If, however, the difference represents too wide a gap to be comparable, then
simple assault in Kansas would be sufficiently similar. In 2003, simple assault
criminalized "intentionally placing another person in reasonable apprehension of bodily
harm." K.S.A. 21-3408. Simple assault entailed causing a similar distress in the victim of
immediate physical harm without requiring the perpetrator to display or even possess a
deadly weapon. A defendant's verbal representation of having a deadly weapon would fit
within the elements of simple assault. (Such conduct could well constitute a criminal
threat under what is now K.S.A. 2020 Supp. 21-5415, punishable as a felony. But that is
beside the point in assessing McGinn's argument.) Both aggravated assault and simple
assault were classified as person crimes in Kansas in 2003. One or the other furnished the
requisite comparability for classifying McGinn's Colorado menacing conviction as a
person felony for criminal history purposes. In classifying an out-of-state conviction as a
person felony, the comparable Kansas crime providing the person designation may be a
misdemeanor, like simple assault. See State v. McMillan, No. 115,229, 2017 WL
3447000, at *7 (Kan. App. 2017) (unpublished opinion), vacated in part on other
grounds and remanded by order (April 30, 2018). McGinn's second argument fails.
Finally, McGinn contends the Kansas Supreme Court's pronouncement in State v.
Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018)—that a Kansas crime can be
similar to an out-of-state crime for criminal history purposes only if its elements are the
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same as or narrower than the out-of-state crime—governs his sentences. The court has
rejected retroactive application of the Wetrich rule to criminal cases that had become
final—meaning any direct appeal had concluded or the time to appeal had run—before
the opinion was issued in 2018. Weber, 309 Kan. at 1209. That disposes of McGinn's
third claim adversely to him.
Affirmed.
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