Saturday, July 20, 2019

PSI insufficient to determine if out-of-state conviction is person felony

Jennifer C. Roth won in State v. Obregon, No. 117,422 (Kan. June 28, 2019), obtaining a new sentencing hearing in a Geary County drug prosecution.  The KSC applied State v. Wetrich (blogged about here), to hold that a Florida battery conviction may or may not have been comparable to a Kansas person offense. The KSC noted that Florida has two different ways to commit an offense called "battery," one which is like Kansas' and another that is not. In particular, because Florida battery turns on the victim's will, there are some things that would be battery under the Florida statute that would not be a crime in Kansas. The KSC concluded that the record was insufficient to make a final determination:

We should also clarify how this alternative means problem fits within our standard of review for these person-crime classification cases. Typically we describe the classification issue as a question of law, but it is a bit more nuanced because it is the State's burden to prove by a preponderance of the evidence that the defendant committed a crime for which classification is appropriate. And when the crime in question is an out-of-state offense with alternative means—some of which would not be comparable to Kansas person crimes—the State's burden is to establish that the defendant committed a version of the offense supporting the person classification. 

On appeal, the district court's finding that the State met its crime classification burden must be supported by substantial competent evidence to withstand scrutiny. The presentence investigation summary frequently can satisfy the State's burden absent defendant's objection, but more is required when the summary does not indicate which version of the out-of-state offense the defendant committed.  And failing additional proof, the person-crime classification is erroneous as a matter of law. 

Applying this clarified standard of review, we hold the district court erred in classifying Obregon's Florida battery conviction as a person crime. The PSI report is the only item in the record establishing the conviction as part of his criminal history, and it does not indicate what version of the offense he committed. This means on this record there is not substantial competent evidence to support the district court finding that Obregon committed a Florida offense with a comparable Kansas person crime. And because the Florida offense on its face is broader than the Kansas comparator, it should not have been classified as a person offense under Wetrich without supporting evidence.

Remand is necessary so the district court can determine the appropriate classification. At resentencing, the State will have the burden to prove Obregon's criminal history by a preponderance of the evidence. 

This is an important holding because, although sometimes a PSI may be specific regarding alternative means from another state, they often are not. This case provides authority for a procedure in cases where a PSI is not sufficiently clear.

The appeal also involved a claim that the district court improperly applied a six-month enhancement for carrying a firearm to commit the crime. Mr. Obregon had pleaded no contest to the drug offenses, but had not stipulated to any facts related to firearms. The COA held that independent findings by the district court violated Apprendi v. New Jersey. The KSC held that, because special verdicts are not generally appropriate in Kansas, remand for a trial on that fact at this point in the procedural posture of the case was not possible.

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