Misdemeanors are still misdemeanors

Janine Cox won in State v. Smith, No. 108,476 (Kan. App.  June 21, 2013)(unpublished), affirming Judge Sundby’s criminal history finding.  Judge Sundby had found that several juvenile misdemeanors had decayed and should not be included in criminal history.  The state argued that, because the misdemeanors had been aggregated and treated like a felony in a previous case, they could not decay.  The COA agreed with Judge Sundby:

Thus, because the nature of the prior offense never changes and because K.S.A. 21–6810 looks to the prior offense to determine whether an adjudication decays, when Smith committed the current crimes after he turned 25, his prior misdemeanor juvenile adjudications decayed under K.S.A. 21–6810(d)(4)(C) and cannot be used in the calculation of his criminal history score. It is irrelevant that the misdemeanor juvenile adjudications have, at some prior time, been converted to person felony adjudications for sentencing purposes.

[Update: the state did not file a PR and the mandate issued on July 25, 2013.]