Clear as Mud: Unraveling Criminal History Scoring

• Publication year: 2024
• Citation: Vol. 93 No. 4 Pg. 39
• Pages: 39

Clear as Mud: Unraveling Criminal History Scoring93 J. Kan. Bar Assn 4, 39 (2024)Kansas Bar JournalAugust 2024

July, 2024

CRIMINAL HISTORY SCORING

By Natalie Chalmers, Kansas Attorney General's Office

For many criminal law practitioners, the statutes and caselaw applicable to criminal history scoring resemble a labyrinth of confusing rules and exceptions. This article seeks to provide guidance by outlining the main statutory and caselaw rules used to determine a defendant's criminal history score.^[1] The article will also touch upon statutory amendments that make challenging criminal history scores for the first time on appeal more difficult.

Determining Which Rules Apply

To correctly apply criminal history scoring rules, some basic principles are critical. One basic principle is that the applicable sentencing statutes are based on the date the crime being sentenced was committed.^[2] Next, applying a sentencing statute retroactively will violate the prohibition against ex post facto laws if it increases the penalty for the crime.^[3]Thus, the vast majority of sentencing statutes will not apply retroactively.

Practical tip: Compare the statutes in effect when the crime was committed, and then the statutes in effect at the time of sentencing. If there are statutory changes that increase the sentence, an ex post facto argument should be made to prevent application of the increase. If the statute in effect at sentencing decreases the punishment, legislative intent will determine if the new statute applies retroactively.

It can be more complicated to determine which caselaw rules apply. If a sentence is final, subsequent changes in caselaw will not apply.^[4] A sentence is final after the direct appeal is completed or at sentencing if no appeal is taken.^[5] If a case was pending or on direct appeal when the law changes, caselaw rulings that go into effect during that time will apply.^[6]

Notably, in deciding illegal sentence issues, the Kansas Supreme Court explained that "the legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time — the moment the sentence was pronounced."^[7] This language, if read outside the context of illegal sentence challenges, could be confusing since it could be read as indicating that the statute in effect at the time of sentencing would apply to a defendant's sentence.

But, as established above, the date of the crime establishes the applicable sentencing statute. Yet, the legal interpretation of that statute, as interpreted by caselaw, is frozen at the time of sentencing unless the law changes while a direct appeal is pending.^[8]

The following is a hypothetical illustration of the application of the above rules:

Facts: Defendants A and B each committed the crime of arson on July 1, 2022. On July 1, 2023, the Kansas Legislature: (1) amended the statutes calculating criminal history in a way that increases the arson sentences and (2) also increased the severity level of arson. Defendant C committed arson on July 2, 2023. All three defendants were found guilty and sentenced in December 2023. Defendants A and C appeal. Defendant B does not. Then, in March 2024, while Defendants A and C's cases are on appeal, the Supreme Court issued an opinion changing the caselaw for sentencing as to statutes in effect on July 1, 2022. This change, if it applies, would benefit all three defendants.

Application of the sentencing statutes: Both Defendants A and B must be sentenced using sentencing statutes in effect on July 1, 2022. Defendant C will be sentenced using the sentencing statute in effect on July 2, 2023. This means only Defendant C will be subject to the increase in the arson severity level as well as the new criminal history score rule. Application of the change in caselaw: Defendant A is entitled to the application of the new caselaw rule because his case was pending on appeal. In a motion to correct an illegal sentence, Defendant B would not be entitled to relief because his sentence was final prior to the decision. Defendant C would not be entitled to the new caselaw rule unless it also affected her sentencing statutes (which is a fact not known from the above scenario).

For many rules, historical context can be helpful. The following is a chronological order of both statutory and caselaw rules broken up by out-of-state crimes and Kansas crimes that broadly affect criminal history scores, followed by special rules for burglary and criminal threat.

The KSGA Is Enacted

Criminal history scoring started on July 1, 1993, with the enactment of the Kansas Sentencing Guidelines Act.^[9] For the first time, crimes were designated as person or nonperson offenses.^[10] But, although the KSGA set forth rules on how to classify out-of-state crimes as felonies or misdemeanors, it did not: (1) explicitly set forth a rule on how to classify crimes that had never been designated as person or nonperson crimes, or (2) explicitly set forth a rule on whether comparisons between the prior crimes and crime being used as the comparison were done based on when the prior crime was committed or when the current crime being sentenced was committed.^[11]

Scoring Out-of-State Prior Convictions

About 20 years later, interpretation of that statutory silence would lead to the first upheaval in criminal history scoring. Not too long after, a new caselaw definition of the term "comparable" would cause another upheaval. Legislative changes followed both upheavals.

A. Person Versus Nonperson

1. Williams signals future problems.

In 2010's State v. Williams, the Supreme Court was faced with determining how to score identity theft crimes from Washington. Post-1993, Kansas' version of identity theft was at times a person crime and at times a nonperson crime.^[12] The KSGA did not set forth an explicit rule on what date should be used to determine the crime's person or nonperson score. Thus, the court had to decide whether the out-of-state crime should be classified as a person or nonperson crime by comparing it to: (1) the Kansas crime of identity theft in existence at the time the out-of-state crime was committed, or (2) the Kansas identity theft statute in effect when the current Kansas crime being sentenced was committed.^[13]

The Supreme Court went with the first option, which ended up being detrimental to Williams. Its rule was: "the comparable Kansas offenses are determined by the dates that [a defendant] committed the prior [ ] offenses."^[14]

2. Murdock upheaves criminal history scores. Defendants then began arguing that Williams meant that all pre-1993 crimes must be classified as nonperson felonies since there was no person designation prior to 1993. The Kansas Court of Appeals was not persuaded.^[15]

But on May 2, 2014, the Supreme Court agreed and drastically altered how criminal history scores were applied to pre-KSGA cases. In State v. Murdock I, the court found that statutory silence in the KSGA on how to score pre-1993 crimes meant crimes committed prior to 1993 could never be scored as person crimes because no person crimes existed prior to 1993.^[16] It did so by relying on Williams, which set the date of comparison at the time the out-of-state crime was committed.^[17]

Then, after a motion for rehearing, the court modified its rule to explicitly limit it to out-of-state crimes in a modified opinion issued on Sept.19, 2014. That modification was used by some district courts to deny defendants challenging their prior Kansas convictions for relief under Murdock .^[18] Others denied relief to defendants with Kansas or out-of-state pre-1993 priors by applying a 2015 statutory Murdock fix retroactively.^[19] But whether those courts were correct largely remained unresolved because subsequent caselaw provided alternative reasons to affirm those decisions.

3. Murdock's rule is short-lived.

The Legislature's reaction was swift. On April 2, 2015, K.S.A. 2015 Supp. 21-6811(e)(3) was modified to read:

The state of Kansas shall classify the crime as person or nonperson. (A) In designating a crime as person or nonperson, comparable offenses under the Kansas criminal code in effect on the date the current crime of conviction was committed shall be referred to. If the state of Kansas does not have a comparable offense in effect on the date the current crime of conviction was committed, the out-of-state conviction shall be classified as a nonperson crime.

A similar rule was also enacted to be applied to pre-1993 Kansas crimes.^[20] The Legislature also enacted subsections declaring that the amendments were retroactive.^[21] But no appellate court has ruled on whether applying the amendment retroactively is constitutional.

And Murdock s rule was short-lived as a caselaw rule too. On Aug. 15, 2015, the Supreme Court issued Keel, which reversed both Williams and Murdock and issued a holding that tracked the legislative amendment:

[T]he classification of a prior conviction or juvenile adjudication as a person or nonperson offense for criminal history purposes under the KSGA is determined based on the classification in effect for the comparable Kansas offense at the time the current crime of conviction was committed.^[22]

Although State v. Keel dealt with the scoring of a prior Kansas conviction, the court made it clear that the rule applied to the scoring of all pre-1993 offenses. Of note, in reaching its opinion, the court did not delve into whether the newly amended statute would apply retroactively. Even today, that question remains unanswered by the appellate courts.

4. Murdock's rule is not extended to Williams' decision date.

In light of Murdock, many criminal history challenges occurred. Those challenges then led to the Supreme Court's clarification of when a change of law regarding criminal...