Date of prior controls person/nonperson decision

Ryan Eddinger won in State v. McKinney, No. 102,906 (Kan. App. Dec. 17, 2010)(unpublished), obtaining a new sentencing hearing in a Leavenworth County failure to register prosecution. The issue involved whether a 2002 Oklahoma conviction for failure to register should be scored as a person or nonperson felony for the current offense. The COA applied a very recent case where the KSC held that the person/nonperson classification must take place in light of Kansas law at the time of the prior offense:

Our Supreme Court has recently resolved this question in State v. Williams. No. 98,667 (Kan. 2010): "In designating these [out-of-state] crimes as person or nonperson, the comparable offenses in Kansas shall be determined as of the date the defendant committed the out-of-state crimes." This promotes the standard principle that the punishment for an offense is fixed as of the date the offense was committed.

McKinney's Oklahoma conviction for failing to register as a sex offender was a felony under Oklahoma law. But the comparable offense in Kansas was a nonperson felony in 2002. So the district court was wrong when it classified McKinney's Oklahoma conviction as a person felony for the purpose of calculating McKinney's criminal-history score.

This is a nice example of how a case can be in the "zone of victory." We lost the Williams case, but it is likely to have a pretty positive impact on lots of other defendants. The question we have been asking is: how do you classify pre-1993 out-of-state convictions? Because there were no person/nonperson felonies at that time. We (and some other attorneys around the state) have been arguing that, under Williams, all pre-1993 out-of-state convictions should be classified as non-person.

[Update: the state did not file a PR and the mandate issued on January 21, 2011.]