State of Kansas, Appellee, v. James A. Vaughan Jr., Appellant. (2026)

MEMORANDUM OPINION

James A. Vaughan Jr. appeals the district court's denial of his motion to correct an illegal sentence, in which he argued two 1985 felony convictions for aggravated assault were improperly counted as person felonies in his criminal history score.

The criminal history scoring rule from State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018) applies to Vaughan's convictions. But even after applying this rule, we still find his convictions were properly counted. We therefore affirm Vaughan's sentence.

Factual and Procedural Background

A jury convicted Vaughan of aggravated robbery and kidnapping for his involvement in crimes occurring on March 15, 2014. State v. Vaughan, No. 113,665, 2017 WL 4082357, at *1 (Kan. App. 2017) (unpublished opinion). At sentencing, Vaughan objected to how four of his prior convictions were scored in his criminal history: he claimed these offenses should be scored as nonperson felonies under State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014). But the district court rejected his argument and calculated his criminal history score as A based on those convictions being person felonies. The court sentenced Vaughan to a controlling sentence of nearly 20 years in prison. Vaughan, 2017 WL 4082357, at *1.

Vaughan's convictions were affirmed on direct appeal by this court in 2017. Vaughan, 2017 WL 4082357, at *1. Vaughan appealed that decision to the Kansas Supreme Court, who denied his petition for review on October 11, 2018. 2017 WL 4082357, rev. denied 308 Kan. 1601 (2018).

Vaughan later moved to correct his sentence, claiming it was illegal. He argued the newly developed Wetrich test for criminal history scoring should apply and, under this test, his two 1985 Kansas convictions for aggravated assault should be scored as nonperson—instead of person—felonies. This would change his criminal history from A to C. See Wetrich, 307 Kan. 552. The district court declined to apply Wetrich and ultimately denied Vaughan's motion. Vaughan appeals this decision.

Review of Vaughan’s Appellate Challenges

Both parties agree Wetrich controls how Vaughan's criminal history score is calculated. See K.S.A. 22-3504(c)(2). But they disagree about the result Wetrich produces: that is, whether Vaughan's convictions count as person or nonperson felonies. If these convictions count as person felonies, as the State argues they should, then Vaughan's sentence is legal. If they count as nonperson felonies, as Vaughan claims they should, then his sentence is illegal because it does not conform to the applicable statutory provisions governing the calculation of an offender's criminal history score. See K.S.A. 22-3504(c)(1); State v. Dawson, 310 Kan. 112, 116, 444 P.3d 914 (2019).

Standard of Review and Relevant Legal Framework

Whether a sentence is illegal is a question of law over which appellate courts exercise unlimited review. See State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). “[T]he legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced․ At that moment, a pronounced sentence is either legal or illegal according to then-existing law.” State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019). A sentence does not become illegal because of a change in the law that occurs after the sentence is pronounced. K.S.A. 22-3504(c)(1). “ ‘Change in the law’ means a statutory change or an opinion by an appellate court of the state of Kansas, unless the opinion is issued while the sentence is pending an appeal from the judgment of conviction.” K.S.A. 22-3504(c)(2).

Statutory interpretation also presents a question of law over which appellate courts have unlimited review. Daniels, 319 Kan. at 342.

At the time Vaughan was sentenced, K.S.A. 2018 Supp. 21-6811(e)(3) required a sentencing court to determine whether a prior out-of-state conviction was a person or nonperson offense by comparing the out-of-state conviction statute to the “comparable offense” in effect in Kansas on the date the current crime was committed. See also State v. Keel, 302 Kan. 560, 590, 357 P.3d 251 (2015) (“[T]he classification of a prior conviction ․ as a person or nonperson offense for criminal history purposes under the KSGA [Kansas Sentencing Guidelines Act] is determined based on the classification in effect for the comparable Kansas offense at the time the current crime of conviction was committed.”). If there was no comparable Kansas crime, the sentencing court had to classify the prior conviction as a nonperson crime. If there was a comparable crime and Kansas classified it as a person crime, the out-of-state conviction had to also be scored as a person crime. K.S.A. 2018 Supp. 21-6811(e)(3).

In March 2018, while Vaughan's direct appeal was still pending, the Kansas Supreme Court decided Wetrich. The Wetrich court defined what the term “comparable offense” meant as used in K.S.A. 2017 Supp. 21-6811(e)(3). It held that the analysis of whether crimes are comparable requires the court to compare the elements of the out-of-state crime to the elements of the Kansas crime. If the out-of-state crime did not possess elements that were identical to or narrower than the elements of the Kansas offense to which it was being compared, the out-of-state conviction had to be classified as a nonperson offense. Wetrich, 307 Kan. at 561-62. K.S.A. 2017 Supp. 21-6811(e)(3) had identical language to K.S.A. 2018 Supp. 21-6811(e)(3), the statute applicable when Vaughan was sentenced.

In State v. Coleman, 311 Kan. 305, 308-10, 460 P.3d 368 (2020), the Kansas Supreme Court extended the Wetrich framework to pre-KSGA Kansas convictions. Under this rule, we must look at the Kansas statute under which Vaughan was convicted. We compare the version in effect at the time Vaughan was convicted of the prior crime (1985) and the version in effect when the crime for which he was being sentenced was committed (2014). See 311 Kan. at 311.

Incidentally, subsequent legislative changes have altered the criminal history scoring landscape for out-of-state and some Kansas convictions. See K.S.A. 2019 Supp. 21-6811(e)(3)(B); State v. Lyon, 58 Kan. App. 2d 474, 485, 471 P.3d 716 (2020). But those changes are not applicable here. Since Vaughan's 1985 felony convictions are pre-KSGA and his sentence was not final when Wetrich was decided, Wetrich controls how we must interpret Vaughan's criminal history. See K.S.A. 22-3504(c)(2).

Comparing the Versions of Vaughan's Statute of Conviction

Vaughan's convictions arose from violations of K.S.A. 21-3410 (Ensley 1981), which was the version of the aggravated assault statute in effect in 1985. After the 2010 recodification of the Kansas criminal code, aggravated assault was codified in K.S.A. 21-5412. Since Vaughan was sentenced in 2014, we must compare K.S.A. 21-3410 (Ensley 1981) with K.S.A. 2013 Supp. 21-5412 under the Wetrich framework to determine whether the convictions should be scored as person or nonperson felonies.

To score Vaughan's convictions as person felonies, the elements of K.S.A. 21-3410 (Ensley 1981) “must be identical to, or narrower than, the elements of” K.S.A. 2013 Supp. 21-5412. Coleman, 311 Kan. 305, Syl. ¶ 2. A side-by-side comparison of the relevant parts of the two versions of the statute highlights their differences:

K.S.A. 21-3410 (Ensley 1981). Aggravated K.S.A. 2013 Supp. 21-5412. Assault; assault. aggravated assault. “(a) Unlawfully assaulting or striking at “(a) Assault is knowingly placing another another with a deadly weapon; or person in reasonable apprehension of immediate “(b) Committing assault by threatening or bodily harm; menacing another while disguised in any manner “(b) Aggravated assault is assault, as designed to conceal identity; or defined in subsection (a), committed: “(c) Willfully and intentionally assaulting (1) With a deadly weapon; another with intent to commit any felony. (2) while disguised in any manner “Aggravated assault is a class D felony.” designed to conceal identity; or (3) with intent to commit any felony․ “(e) (1) Assault is a class C person misdemeanor. (2) Aggravated assault is a severity level 7, person felony.”

K.S.A. 21-3410 (Ensley 1981) does not define assault; it defines aggravated assault. But K.S.A. 2013 Supp. 21-5412 does define assault. So we must also consider how assault was defined elsewhere in the statutory code in effect in 1985, which can be found in K.S.A. 21-3408 (Ensley 1981), and it provides: “An assault is an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary.” Again, a side-by-side comparison of the two definitions of assault assists our analysis:

Under K.S.A. 21-3408 (Ensley 1981), assault is: Under K.S.A. 2013 Supp. 21-5412(a), assault is: “[A]n intentional threat or attempt to do bodily “[K]nowingly placing another person in harm to another coupled with apparent ability and reasonable apprehension of immediate bodily resulting in immediate apprehension of bodily harm.” harm. No bodily contact is necessary.”

Vaughan contends K.S.A. 21-3410 (Ensley 1981) is broader than K.S.A. 2013 Supp. 21-5412. And he correctly frames the question as whether one could commit aggravated assault under the 1985 version of Kansas’ aggravated assault statute which would not be aggravated assault under the 2013 version. He attempts to support his position by pointing out the 1985 version includes various specific ways one could commit assault—such as attempting to do bodily harm or striking at another with a deadly weapon—which are not set forth in the 2013 version. But there are several problems with his argument.

First, the general definition of assault in K.S.A. 2013 Supp. 21-5412 encompasses the specific ways one can commit assault in K.S.A. 21-3410 (Ensley 1981). For instance, an attempt to do bodily harm to another coupled with the apparent ability and resulting in immediate apprehension of bodily harm would qualify as knowingly placing another person in reasonable apprehension of immediate bodily harm. As would striking at another with a deadly weapon or intentionally threatening another coupled with the apparent ability and resulting in immediate apprehension of bodily harm.

Vaughan also points out K.S.A. 21-3410 (Ensley 1981) includes “menacing” another, which is not included in K.S.A. 2013 Supp. 21-5412. While K.S.A. 21-3410 (Ensley 1981) does not define menacing, Black's Law Dictionary defines menacing as “[a]n attempt to commit common-law assault,” and it notes that the term is used “in jurisdictions that have defined assault to include battery.” Black's Law Dictionary 1177 (12th ed. 2024). Then Webster's New World College Dictionary defines “menace” as “a threat or the act of threatening” and “menacing” as “to threaten or be a danger (to).” Webster's New World College Dictionary 912 (5th ed. 2018). Again, these actions would qualify as knowingly placing another person in reasonable apprehension of immediate bodily harm.

Next, Vaughan's argument fails to account for an important limitation in K.S.A. 21-3408’s definition of assault which is not present in K.S.A. 2013 Supp. 21-5412: to qualify as aggravated assault under K.S.A. 21-3410 (which incorporates K.S.A. 21-3408’s definition of assault) the action had to be coupled with the apparent ability. K.S.A. 2013 Supp. 21-5412 contains no such requirement.

The State raises another point which cuts against Vaughan's argument: K.S.A. 21-3408’s definition of assault has a higher mens rea requirement—requiring one to act intentionally—than K.S.A. 2013 Supp. 21-5412’s definition—which only requires one to act knowingly to qualify as assault. See K.S.A. 21-5202(b) (classifying intentionally as a higher degree of culpability than knowingly). This requirement further limited the ways one could commit aggravated assault under K.S.A. 21-3410 as compared to K.S.A. 2013 Supp. 21-5412.

For these reasons, we find the elements of aggravated assault under K.S.A. 21-3410 are narrower than the elements of aggravated assault under K.S.A. 2013 Supp. 21-5412. And based on this finding, Vaughan's prior 1985 convictions were properly scored as person felonies. See Coleman, 311 Kan. 305, Syl. ¶ 2; Wetrich, 307 Kan. at 561-62.

Vaughan waived his right to challenge the existence of his prior criminal convictions.

In addition to the brief submitted by his counsel, Vaughan also filed a pro se brief. In this brief, he claims he never admitted to his criminal history, and he was never provided a copy of his presentence investigation (PSI) report. He also claims the sentencing court erred by not making the State prove the existence of his prior convictions.

We are unpersuaded. First, Vaughan admitted to reviewing the PSI report at his sentencing hearing. Next, at that hearing, he objected to the scoring of the 2003 Missouri conviction, the two 1985 Kansas aggravated assaults, and a different Missouri conviction from 1985. He argued based on previous caselaw that these crimes should be scored as nonperson felonies. So, as the State points out, Vaughan was aware of these prior convictions at the time of sentencing, and he did not dispute their existence. Instead, he contested their scoring. He also attached the amended PSI report outlining his prior convictions to his motion to correct an illegal sentence. Again, in that motion, Vaughan did not object to the fact he committed the offenses—he simply objected to their scoring.

K.S.A. 21-6814 specifies when a defendant must object to their criminal history, and the process to be followed if that occurs:

“(b) Except to the extent disputed in accordance with subsection (c), the summary of the offender's criminal history prepared for the court by the state shall satisfy the state's burden of proof regarding an offender's criminal history.

“(c) Upon receipt of the criminal history worksheet prepared for the court, the offender shall immediately notify the district attorney and the court with written notice of any error in the proposed criminal history worksheet. Such notice shall specify the exact nature of the alleged error. The state shall have the burden of proving the disputed portion of the offender's criminal history. The sentencing judge shall allow the state reasonable time to produce evidence to establish its burden of proof. If the offender later challenges such offender's criminal history, which has been previously established, the burden of proof shall shift to the offender to prove such offender's criminal history by a preponderance of the evidence.” K.S.A. 21-6814(b), (c).

Because the only errors Vaughan alleged as to his criminal history, at sentencing and later at his motion to correct an illegal sentence, related to the scoring of his convictions, the State did not have to produce anything more than the PSI report to establish the existence of the convictions in his criminal history. We therefore deny his request to vacate his sentence on these grounds.

Affirmed.

Cline, J.: