State v. ArmstrongState v. Armstrong
- Reporters:
- , ,
- Before:
- Pierron
Randy T. Armstrong appeals from the sentence imposed following a no contest plea to reduced charges. Finding no error, we аffirm.
In May 2000, Armstrong entered pleas of no contest to two counts of attempted aggravated indecent liberties with a minor, severity level 5 felonies. In the plea agreement, Armstrong acknowledged his criminal history score would likely be “A.” At the plea hearing, Armstrong acknowlеdged he might be subject to classification as a persistent sex offender.
A presentence investigation (PSI) report was prepаred which reflected that Armstrong had six prior convictions for statutory rape 2 and one conviction of statutory rape 3 from the Stаte of Washington. The persistent sex offender rules of the Kansas sentencing guidelines applied. See
At sentencing, Armstrong admitted the PSI report correctly reflected his prior convictions, but renewed his objection to including
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those convictions in his criminal history. The State аrgued that two of Armstrong’s prior convictions could be used to classify Armstrong as a persistent sex offender and the remaining five convictiоns could be included in his criminal history. The trial court overruled Armstrong’s objections and assigned him a criminal history score of “A.” On Count I, the court imposed a 272-month sentence, double the standard presumptive sentence for grid box 5-A, pursuant to
The sole issue on appeal is whether the court was barred under
In this case, the trial court doubled Armstrong’s presumptive sentence pursuant to
“The sentencе for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term. . . . Except as otherwise provided in this subsection, . . . ‘persistent sex offender means a рerson who: (1) Has been convicted in this state of a sexually violent crime . . . and (2) at the time of the conviction under subsection (1) has at least one conviction for а sexually violent crime, ... in this state or comparable felony under the laws of another state . . . .” (Emphasis added.)K.S.A. 2000 Supp. 21-4704(j) .
Armstrong does not challеnge the number or nature of his prior convictions. However, he contends that pursuant to K.S.A. 21- *824 4710(d)(ll) and State v. Taylor, 27 Kan. App. 2d 62, 998 P.2d 123, rev. denied 269 Kan. 940 (2000), none of his prior convictions could be inсluded in his criminal history score. We find Taylor to be of little assistance in this case.
In
Taylor,
the defendant was sentenced as a persistent sex offender based on his current crime of conviсtion (aggravated indecent liberties) and his
one
prior conviction of indecent liberties. 27 Kan. App. 2d at 63. In interpreting various sentencing statutes, this court compared the persistent sex offender stаtute—
Because the defendant in Taylor had only one prior conviction for a sexually violent crime, that court did not address the question presently before us—whether the court may classify a defendant as a persistent sex offender based on one prior sеx offense and include other prior sex offenses in the defendant’s criminal history score. We are persuaded another Taylor case, State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997), provides appropriate guidance in these circumstances.
In Taylor, 262 Kan. 471, the defendant was convicted in various cases and was sentencеd to probation. Several months later, he was charged with aggravated escape from custody. In the complaint, the State alleged the defendant was in custody on a felony cocaine possession charge from one of the cases. The defendаnt pled guilty to escape and a dispute arose at sentencing as to the proper calculation of the defendant’s сriminal history that was based upon whether defendant’s other convictions from the same case as the possession of cocaine conviction could be included in his criminal *825 history score. After reviewing the complaint and various sentencing statutes, the Supreme Cоurt concluded all the prior convictions, except the single conviction of possession of cocaine, should be included in the criminal history. 262 Kan. at 479.
The same rationale applies in this case. The sentencing guidelines specifically provide that all prior convictions are to be considered in a defendant’s criminal history score unless otherwise excluded.
In this case, a defendant may be sentenced as a persistent sex offender if he or she “has at least one conviction for a sexually violent crime.”
For these reasons, the trial court did not err in calculating Armstrong’s sentence. The court used one of Armstrong’s prior statutory rape convictions to trigger the рersistent sex offender enhancement and excluded this conviction from Armstrong’s criminal history score. Armstrong’s other prior convictions were sufficient to give Armstrong a criminal history of “A.”
Affirmed.