State v. Fowler, 116803

Fowler pled guilty to felony possession of methamphetamine, felony domestic battery (charged as a felony because of two prior domestic battery convictions within five years), and misdemeanor violation of a protective order pursuant to a plea agreement.
The State anticipated Fowler's criminal history score would be E, producing a presumptive probation recommendation for the drug offense; the PSI aggregated six prior person misdemeanors into two person felonies, yielding a score of B and a presumptive prison sentence.
Fowler moved for a dispositional departure to probation and initially objected to his criminal history score but withdrew the objection at sentencing and personally agreed the score was correct; the State joined his request for a departure to honor the plea spirit.
The district court denied the dispositional departure and sentenced Fowler to 34 months' imprisonment on the methamphetamine conviction (primary/ base offense) and county jail terms for the other counts, with sentences concurrent.
On appeal Fowler argued (for the first time) his sentence was illegal under K.S.A. 2015 Supp. 21-6810(d)(9) because two prior domestic-battery misdemeanors were used both to elevate his current domestic battery to a felony and to increase his criminal history score (i.e., impermissible double counting).

Issue	Fowler's Argument	State's Argument	Held
Whether prior convictions used to elevate a present conviction (domestic battery) may also be counted in calculating criminal history for the primary offense	The two prior domestic-battery misdemeanors were used to elevate domestic battery to a felony and therefore must be excluded from criminal history under K.S.A. 2015 Supp. 21-6810(d)(9); counting them twice produced an illegal sentence	The exclusion in 21-6810(d)(9) applies to the ‘‘present crime of conviction’’ as the primary/base crime only; Fowler’s primary crime was methamphetamine possession, so the domestic-battery priors did not enhance the primary crime and may be scored	Affirmed: Court held priors were properly included for criminal-history scoring because the exclusion in 21-6810(d)(9) applies to the primary crime used to compute the base sentence; domestic battery was nongrid and not the primary crime, so inclusion did not create an illegal sentence

State v. Dickey, 301 Kan. 1018 (addresses that challenges to illegal sentences may be raised at any time)
State v. Reese, 300 Kan. 650 (describes self-contained criminal statutes with their own sentencing provisions)
State v. Vontress, 266 Kan. 248 (prior conviction used as element of a nonbase offense may still be included in criminal history applied to the primary offense)
State v. Davis, 275 Kan. 107 (reaffirming Vontress analysis regarding primary vs. nonbase offenses and criminal-history application)
State v. Collins, 303 Kan. 472 (discusses nongrid felony classification such as felony domestic battery)
State v. Jordan, 303 Kan. 1017 (principles of statutory construction and legislative intent)
State v. Lee, 304 Kan. 416 (related authority on sentence illegality review standards)
State v. Vandervort, 276 Kan. 164 (background on KSGA factors: severity level and criminal history)