Sunday, October 12, 2014

Texas conviction for evading arrest is a nonperson offense

Samuel Schirer won in State v. Long, No. 110,852 (Kan. App. Sept. 19, 2014)(unpublished), obtaining a new sentencing hearing in a Shawnee County aggravated battery prosecution.  The only issue was the proper person/nonperson classification for a Texas conviction for evading arrest.  The answer to the question depended on which subsection of the Kansas offense of fleeing and eluding was most comparable:
As Long contends, K.S.A. 8–1568(a) covers the same criminal conduct as Tex. Penal Code Ann. § 38.04(b)(1) (Vernon 2001); both statutes prohibit a person from using a motor vehicle to flee from or evade a known police officer who is attempting to detain that person. A violation of K.S.A. 8–1568(b) requires additional conduct that is not included in the Texas statute.
The court looks to the most comparable Kansas offense to determine whether the conviction is classified as a person or nonperson crime.  Therefore, although K.S.A. 8–1568(b) may cover similar conduct as the Texas statute, K.S.A. 8–1568(a) is more comparable as it does not require additional actions beyond those required by the Texas statute. Accordingly, the district court should have classified Long's Texas conviction as a nonperson offense since a first conviction of K.S.A. 8–1568(a) is a nonperson offense.
[Update: the state did not file a PR and the mandate issued on October 23, 2014.]

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