STATE v. OBREGON (2018)

MEMORANDUM OPINION

Defendant Christopher Obregon asserts the Geary County District Court erred in three ways in sentencing him after he pleaded no contest to one count of possession of marijuana with the intent to distribute and one count of possession of cocaine with the intent to distribute. The arguments are:

• The district court impermissibly imposed a six-month sentencing enhancement on each count on the grounds Obregon possessed a firearm “in furtherance of” those drug crimes, as provided in K.S.A. 2015 Supp. 21-6805(g)(1)(A). We agree. As we explain, the enhancement reflects a factual determination that, consistent with the Sixth Amendment to the United States Constitution, must be made by a jury unless a defendant waives the right. Obregon did not waive his right to have a jury make that determination, so the district court improperly imposed the additional punishment. Obregon did, however, waive his right to have a jury find him guilty or not guilty of the drug crimes themselves. We, therefore, vacate the firearm enhancement and remand to the district court for further proceedings.

• The district court improperly treated Obregon's Florida conviction for battery as a person felony in determining his criminal history and establishing presumptive guidelines sentences for the drug convictions. We disagree. Unlike the firearm enhancement, the assessment of the Florida conviction entails no fact-finding and does not implicate Obregon's Sixth Amendment right to jury trial. As we explain, it presents a question of law that the district court correctly resolved. We, therefore, affirm the district court's assessment of Obregon's criminal history and the resulting presumptive guidelines sentences.

• The district court impermissibly relied on Obregon's criminal history because no jury reviewed and found, as a matter of fact, that those past convictions actually exist. The Kansas Supreme Court has rejected this argument and repeatedly reaffirmed its holding in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), that the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments in its use of a defendant's past convictions in establishing a presumptive statutory punishment. State v. Huey, 306 Kan. 1005, 1008, 399 P.3d 211 (2017); State v. Pribble, 304 Kan. 824, 838-39, 375 P.3d 966 (2016). Obregon acknowledges the state of law on his Ivory claim. We affirm the district court on this point and do not consider it further.

The facts underlying the criminal charges against Obregon are largely immaterial. They arose from a law enforcement investigation that culminated in May 2016 with the search of Obregon's home and truck. The officers found the drugs in a bedroom in the residence. They also discovered two handguns in the bedroom and a third handgun in the truck. The search turned up other controlled substances and items that could be considered paraphernalia used to traffic in illegal drugs.

As part of a plea arrangement with the State, Obregon agreed to plead no contest to the charges of possession with intent to distribute marijuana and cocaine. The State agreed to dismiss other charges that had been filed. The written plea agreement permitted “open” sentencing, meaning the prosecutor and Obregon's lawyer were free to argue to the district court for any lawful sentence. The plea agreement specifically identified the statutory firearm enhancement in K.S.A. 2015 Supp. 21-6805(g)(1)(A) as being applicable to the charges. In conjunction with the agreement, Obregon also signed a waiver of rights that identified “a trial by a jury of 12 persons” as one of those rights. The waiver of rights also referred to the firearm enhancement in outlining the crimes to which Obregon would plead.

At the plea hearing in December 2016, the district court identified the firearm enhancement in describing the charges to Obregon and in explaining possible sentences. The district court established that Obregon had read the plea agreement and the waiver of rights, talked with his lawyer about the case and the plea, and believed he understood the arrangement and its legal ramifications. The district court informed Obregon of various constitutional rights he had as a criminal defendant and explained he would effectively be giving up those rights by entering a plea rather than going to trial. As part of a lengthy recitation of the rights, the district court told Obregon he was “entitled to a speedy and public trial by a jury.” The district court did not otherwise describe the right to jury trial. The district court discussed a no-contest plea with Obregon. And the district court outlined the potential sentences for the crimes to which Obregon had agreed to plead. The district court then separately discussed the firearm enhancements. The district court explained that based on the prosecutor's proffer of the circumstances of the crimes, it would determine if the firearm enhancement applied. If the enhancement were applicable, the district court could increase the prison term for each crime by six months. Obregon acknowledged his understanding of the potential increase in sentence. The district court verified that Obregon had not been threatened or coerced and was entering his pleas voluntarily.

Obregon entered pleas of no contest to the two charges. The prosecutor then gave a detailed factual account of the search of Obregon's home and truck, describing the illegal drugs, the handguns, and other evidence law enforcement officers found there. The district court accepted the no contest pleas and adjudged Obregon guilty of the charged crimes. In addition, the district court specifically found the statutory firearm enhancement applied to each crime of conviction. Because Obregon entered no contest pleas, the prosecutor's factual recitation did not amount to an admission that could be used against him at sentencing or for collateral purposes. See State v. Case, 289 Kan. 457, Syl. ¶ 4, 213 P.3d 429 (2009). It simply served to support the factual basis for the convictions.

At a hearing in February 2017, the district court denied Obregon's request for either a downward dispositional departure or a downward durational departure in his sentences. The district court imposed a standard guidelines sentence of 73 months in prison on the conviction for possession of cocaine with intent to distribute and added 6 months to that term of imprisonment as a firearm enhancement. The district court imposed a standard guidelines sentence of 49 months on the conviction for possession of marijuana with intent to distribute and added 6 months as a firearm enhancement. The district court ordered that Obregon serve the sentences concurrently. Obregon has appealed.

There are no disputed facts bearing on the points we consider, so they present questions of law. We review them without deference to the district court's rulings. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010) (appellate court exercises unlimited review over question of law); State v. Bennett, 51 Kan. App. 2d 356, 361, 347 P.3d 229 (when material facts undisputed, issue presents question of law), rev. denied 303 Kan. 1079 (2015); Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011) (legal effect of undisputed facts question of law).

In pertinent part, the statute imposing the firearm enhancement provides: “[I]f the trier of fact makes a finding that an offender ․ in furtherance of a drug felony, possessed a firearm ․ the offender shall be sentenced to ․ an additional 6 months' imprisonment.” K.S.A. 2015 Supp. 21-6805(g)(1). The six-month term gets tacked on to the sentence that otherwise would go with the drug conviction based on the severity level of the crime and the defendant's criminal history, and it “shall not be considered a departure and shall not be subject to appeal.” K.S.A. 2015 Supp. 21-6805(g)(2).

The firearm enhancement plainly requires a factual finding distinct from and in addition to the elements of the underlying drug crime. And it necessarily extends the term of incarceration of the defendant. For those reasons, the firearm enhancement—like an aggravating circumstance supporting an upward departure increasing the guidelines sentence attached to a crime—implicates a defendant's Sixth Amendment jury trial rights. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); State v. Horn, 291 Kan. 1, 10, 238 P.3d 238 (2010); Bennett, 51 Kan. App. 2d at 362. A defendant, therefore, has a constitutional right to have a jury make the requisite factual findings beyond a reasonable doubt. State v. Gould, 271 Kan. 394, 405-06, 410-12, 23 P.3d 801 (2001).

In any given case, however, a defendant may waive his or her right to a jury trial as to guilt or innocence and as to any factual circumstance that would increase the presumptive sentence upon conviction. The waiver must be knowingly and voluntarily made on the record in open court. As part of that process, the district court must inform the defendant of his or her right and then secure a waiver. See State v. Rizo, 304 Kan. 974, Syl. ¶ 2, 377 P.3d 419 (2016); State v. Beaman, 295 Kan. 853, 858-59, 286 P.3d 876 (2012). The Kansas Supreme Court has held that the colloquy need not include a detailed description of the jury trial right. 295 Kan. at 859. But the court requires the district court to specifically point out the defendant's right to have a jury decide any enhancement or aggravating factor that would increase the sentence upon conviction to obtain a valid waiver of that component of the right. State v. Duncan, 291 Kan. 467, 472-73, 243 P.3d 338 (2010); Bennett, 51 Kan. App. 2d at 362-63.

Here, the district court did not so inform Obregon with respect to his jury trial right. The district court's brief description of the jury trial right was sufficient to support a knowing and voluntary waiver of Obregon's right to have a jury decide guilt or innocence. It was not, however, adequately descriptive to secure a waiver of his right to submit the facts bearing on the firearm enhancement to a jury. Absent a valid waiver, the district court's imposition of the enhancement based on its own assessment of the prosecutor's proffer at the plea hearing violated Obregon's Sixth Amendment rights.

We mention that Obregon is not directly challenging the six-month sentence itself and, therefore, doesn't run afoul of the prohibition on appeals in K.S.A. 2015 Supp. 21-6805(g)(2). He challenges the procedural predicate for the district court's imposition of the sentence. Without a valid jury trial waiver, the district court could not properly act to impose the enhancement. Similarly, a defendant might not be able to appeal the enhancement itself following a jury trial in which the jurors both convicted him or her of the underlying drug charge and made the requisite factual finding supporting possession of a firearm. But the defendant could appeal the drug conviction. If that conviction were reversed on appeal, the firearm enhancement would be void, since the necessary foundation for the additional sentence would no longer exist.

We, therefore, vacate the firearm enhancement for each of Obregon's drug convictions. The failure to obtain an adequate jury trial waiver essentially vitiates the proceeding to which a valid waiver would attach. See State v. Johnson, 46 Kan. App. 2d 387, 400, 264 P.3d 1018 (2011). Here, that is the imposition of the firearm enhancement. The case is remanded to the district court for Obregon to waive his right to jury trial on the enhancement (after being duly advised of that right) or to exercise his right to have a jury decide the factual bases for the enhancement.

For his remaining issue on appeal, Obregon contends the district court improperly scored his Florida conviction for battery as a person felony for criminal history purposes. He says the district court failed to determine that he had been convicted under a part of the Florida statute criminalizing conduct that would be identical to that included in the comparable Kansas statute. In turn, he contends the failure compromised his constitutional rights protected in Apprendi and later cases including Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), and State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015). We reject Obregon's argument because the premise is faulty—the scoring of out-of-state convictions for criminal history purposes entails a comparison of statutory elements and, thus, presents a legal issue entailing no fact-finding implicating Apprendi or related cases applying a criminal defendant's Sixth Amendment rights. The out-of-state criminal statute need only be comparable to and not identical with a codified Kansas crime. See State v. Williams, 299 Kan. 870, 874-75, 326 P.3d 1070 (2014); State v. Fahnert, 54 Kan. App. 2d 45, Syl. ¶ 2, 396 P.3d 723 (2017).

The Kansas Criminal Code directs how out-of-state convictions are to be treated for criminal history purposes: The foreign jurisdiction's classification of the crime as a felony or misdemeanor controls, K.S.A. 2017 Supp. 21-6811(e); and the conviction will be classified as a person offense or a nonperson offense based on how Kansas treats a “comparable” offense, K.S.A. 2017 Supp. 21-6811(e). If Kansas has no comparable offense, the conviction must be considered as a nonperson offense. K.S.A. 2017 Supp. 21-6811(e). The comparability determination is made under the Kansas Criminal Code in effect at the time the defendant committed the crime for which he or she is being sentenced. K.S.A. 2017 Supp. 21-6811(e). To determine comparability, the district court should examine the statutory elements of the out-of-state crime and the statutory elements of any potentially comparable Kansas crime. Williams, 299 Kan. at 873-74. The elements need not be identical; the crimes will be treated as comparable if the analysis shows they “cover a similar type of criminal conduct.” Fahnert, 54 Kan. App. 2d 45, Syl. ¶ 2. The comparison entails a legal exercise based purely on the statutory descriptions of the crimes. The particular facts associated with the defendant's conviction are irrelevant. Williams, 299 Kan. at 874-75.

Obregon doesn't dispute that Florida treated his conviction as a felony, so it must be scored as a felony in establishing his criminal history in this case. The record on appeal is sketchy about the precise Florida statute under which Obregon was charged and convicted. On appeal, Obregon represents he was convicted of simple battery in Florida, which becomes a felony for a second conviction. See 2009 version of F.S.A. § 784.03. Based on Obregon's representation of the elements of the Florida statute when he was convicted there, those elements are very similar to, though not identical with, battery as defined in K.S.A. 2015 Supp. 21-5413(a). That similarity is legally sufficient under Williams to use battery as the comparable offense for criminal history purposes. Battery is considered a person offense under Kansas law. K.S.A. 2015 Supp. 21-5413(g)(1). Applying the statutory test for scoring out-of-state convictions for criminal history purposes, Obregon's Florida conviction should be considered a person felony—Florida treated the conviction as a felony, and Kansas identifies its comparable crime as a person offense. Kansas' classification of simple battery as a misdemeanor is irrelevant, since the treatment of the past crime as a felony or misdemeanor derives solely from the convicting jurisdiction's classification. See State v. McMillan, No. 115,229, 2017 WL 3447000, at *7 (Kan. App. 2017) (unpublished opinion), petition for rev. filed September 11, 2017.

The district court correctly treated the Florida conviction as a person felony in determining Obregon's criminal history.

We affirm the guidelines sentences the district court imposed on Obregon for the two drug convictions. We vacate the firearm enhancement imposed under K.S.A. 2015 Supp. 21-6805(g)(1) for each conviction and remand with directions that the district court either secure a valid waiver from Obregon of his right to jury trial as to the factual bases for those enhancements or permit Obregon to exercise that right to have a jury consider the evidence supporting the enhancements.

Affirmed in part, vacated in part, and remanded with directions.

Per Curiam: