State v. Colbert

NOT DESIGNATED FOR PUBLICATION

No. 114,181

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES M. COLBERT,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; HAROLD E. FLAIGLE, judge. Opinion filed April 8, 2016.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

Before ARNOLD-BURGER, P.J., GREEN and LEBEN, JJ.

Per Curiam: James M. Colbert appeals the district court's denial of his motion to
correct an illegal sentence under K.S.A. 22-3504(1). We granted his motion for summary
disposition under K.S.A. 2015 Supp. 21-6820(g) and (h) and Supreme Court Rule 7.041A
(2015 Kan. Ct. R. Annot. 67).

Colbert was sentenced in 2005 after he pled no contest to three counts of
aggravated robbery, one count of attempted aggravated robbery, and one count of
misdemeanor theft. Under our state's sentencing guidelines, a felony sentence is based in
part on a defendant's criminal-history score. The worse the defendant's criminal-history
score, the longer the presumptive guideline sentence. Colbert contends that his criminal-
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history score was miscalculated, so we must review his past convictions to see whether
they were scored properly under the sentencing guidelines.

The presentence investigation report noted that Colbert had a misdemeanor
conviction for battery in September 2002 and two misdemeanor convictions for domestic
battery in August 2003 and October 2004. Under K.S.A. 2004 Supp. 21-4711(a), those
three misdemeanors were treated as a person felony, which increased Colbert's criminal-
history score. The district court ultimately found Colbert's criminal-history score to be a
B and sentenced him to 206 months in prison with 36 months' postrelease supervision.

In 2014, Colbert filed a motion to correct an illegal sentence. He argued that the
municipal court that convicted him didn't have jurisdiction to hear the case because he
should have been charged with felony domestic battery for his third domestic-battery
offense and municipal courts do not have jurisdiction to hear felony cases. He reasoned
that because the municipal court lacked jurisdiction, the conviction was void and could
not be considered by the district court in determining his criminal-history score. See State
v. Elliott, 281 Kan. 583, Syl. ¶¶ 1, 3, 133 P.3d 1253 (2006) (holding that municipal courts
do not have jurisdiction to hear felony cases and that any resulting convictions are void).
Thus, according to Colbert, the district court improperly calculated his criminal-history
score in the aggravated-robbery case, resulting in an illegal sentence. See State v. Dickey,
301 Kan. 1018, 1030-34, 350 P.3d 1054 (2015) (noting that if the criminal-history score
is incorrect, the defendant's sentence is necessarily illegal because it does not comply
with applicable statutory provisions for sentencing). The district court denied Colbert's
motion to correct an illegal sentence, and Colbert has appealed to our court.

Whether a sentence is illegal is a question of law that we review independently,
with no required deference to the district court. State v. Collins, 303 Kan. 472, 473, 362
P.3d 1098 (2015). Likewise, we exercise independent review in determining whether the
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municipal court had jurisdiction over the 2004 domestic-battery case. See State v.
Jenkins, 295 Kan. 431, 435, 284 P.3d 1037 (2012).

K.S.A. 2004 Supp. 21-3412a(a)-(b) (now K.S.A. 2015 Supp. 21-5414[a]-[b]) set
out the elements of domestic battery and provided that the first and second convictions
were misdemeanors but that the third conviction for domestic battery within 5 years was
a felony. At the time Colbert was sentenced for the aggravated robbery, the domestic-
battery statute defined "conviction" to include only convictions for domestic battery.
K.S.A. 2004 Supp. 21-3412a(c)(2)(A) ("'Conviction' includes being convicted of a
violation of this section or entering into a diversion or deferred judgment agreement in
lieu of further criminal proceedings on a complaint alleging a violation of this section."
[Emphasis added.]). The elements of and punishment for battery were provided
separately in K.S.A. 2004 Supp. 21-3412.

As we previously noted, Colbert's record shows a misdemeanor battery conviction
in 2002, a misdemeanor domestic-battery conviction in August 2003, and another
misdemeanor domestic-battery conviction in 2004. So when the municipal court
convicted Colbert of domestic battery in 2004, he had only one prior conviction for
domestic battery (from 2003). His 2002 battery conviction did not count as a prior
conviction under the domestic-battery statute. Since Colbert's 2004 domestic-battery
offense was his second, not his third, the municipal court had jurisdiction to hear the case
and convict him. Because the conviction was valid, the sentencing court properly
considered it in determining Colbert's criminal-history score and did not impose an illegal
sentence.

We therefore affirm the district court's judgment.