Peter Maharry won in State v. Aschenbrenner, No. 123,385 (Kan. App. October 1, 2021) (unpublished), obtaining a remand with directions in a Thomas County burglary prosecution. Mr. Aschenbrenner argued that his original 2020 sentences were illegal because his criminal history score of C included a prior juvenile adjudication of criminal threat, and the PSI did not reflect whether the adjudication was based on the intentional or reckless version of the offense. The state argued Mr. Aschenbrenner’s illegal sentencing claim was barred because he agreed to his criminal history score on the record at sentencing.
The COA disagreed with the state holding that Mr. Aschenbrenner’s stipulation to does not prevent the it from reaching the claim on appeal. Addressing the merits of the claim, the COA determined:
If the adjudication is not included in Aschenbrenner’s criminal history, then his criminal history score would be F . . . Thus, if Aschenbrenner committed the reckless version of criminal threat, then his sentence for each burglary conviction does not conform to the applicable statutory provision and is, in fact, illegal.
The COA declined to vacate Mr. Aschenbrenner’s sentences because the PSI did not establish which version of criminal threat was committed in the prior juvenile adjudication. Instead, the COA remanded with directions to the district court to determine whether the prior juvenile adjudication was based on the intentional or reckless version of criminal threat. The COA further directed the district court to vacate Mr. Aschenbrenner’s sentences and resentence him using the correct criminal history score if the state is unable to show that the juvenile adjudication was based on the intentional version of the offense.
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