338 P.3d 1236
Kan. Ct. App.2014Background
- Anthony H. Martinez pleaded no contest in Feb 2013 to failure to register (severity level 6 person felony). PSI scored him in criminal history category B based in part on three municipal ordinance convictions for failing to comply with bond restrictions (Wichita Mun. Ord. § 1.04.125) treated as person misdemeanors and aggregated into a person felony.
- Martinez objected at sentencing that the municipal ordinance is broader than the Kansas misdemeanor the State relied on (K.S.A. 1996 Supp. 21-3843(a)(4), predecessor to K.S.A. 21-5924) and therefore should not be scored as a person misdemeanor.
- The district court overruled the objection, classified the municipal convictions as person misdemeanors, and imposed a sentence of 37 months with a dispositional departure to 24 months probation.
- On appeal Martinez argued (1) the ordinance is not comparable to the Kansas person misdemeanor, and (2) using facts beyond the mere prior-conviction to classify the prior offenses violated Apprendi/Descamps (Sixth Amendment jury-trial rights).
- The appellate court held the municipal ordinance is comparable to the protective-order misdemeanor statute insofar as it contains an alternative prohibiting contact with a third person, but because the ordinance is divisible the court must review extra-statutory materials to confirm which statutory alternative supported the 1997 conviction; the record is unclear, so the sentence was vacated and remanded for further fact inquiry.
Issues
| Issue | Plaintiff's Argument (Martinez) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Were the municipal convictions comparable to a Kansas person misdemeanor for criminal-history scoring? | Municipal ordinance is broader and not directly comparable to the Kansas protective-order statute. | Ordinance is similar in essence to K.S.A. predecessor (prohibiting direct/indirect contact) and thus comparable. | Ordinance is comparable to K.S.A. 1996 Supp. 21-3843(a)(4) for KSGA comparability. |
| Did the court impermissibly rely on facts beyond the prior-conviction to classify the priors (Apprendi/Descamps issue)? | Court had to do extra factfinding to determine whether prior municipal convictions involved prohibited third-person contact, implicating Sixth Amendment. | Prior-conviction facts may be used; if statute is divisible, limited extra-statutory review is permitted. | Because ordinance is divisible, the modified categorical approach permits limited record review, but the record here is ambiguous as to the 1997 conviction; vacate and remand for examination of extra-statutory materials. |
| Could the district court use the criminal history to increase sentence without jury proof? | Use of priors to increase sentence violated Apprendi (not proved to a jury). | Tabulating prior convictions under sentencing guidelines is permissible; Apprendi exception for prior convictions. | Rejected — use of prior convictions under KSGA is constitutional; Apprendi not violated in typical tabulation. |
| Was remand required? | Remand unnecessary; classification was clear. | Remand appropriate only if record ambiguous. | Remand required because record does not clearly show whether 1997 conviction involved prohibited third-person contact. |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (established that any fact other than a prior conviction that increases maximum penalty must be submitted to a jury)
- Descamps v. United States, 133 S. Ct. 2276 (limited use of the modified categorical approach to divisible statutes; prohibits sentencing factfinding that invades jury role)
- Shepard v. United States, 544 U.S. 13 (identifies the extra-statutory materials admissible to determine the factual basis of a prior conviction)
- Johnson v. United States, 559 U.S. 133 (clarifies use of records to identify which statutory alternative supported a conviction)
- State v. Vandervort, 276 Kan. 164 (Kansas standard that offenses need not have identical elements to be comparable under sentencing guidelines)